Shame would be a good thing

Pulbic shame would be a wonderful thing for our political and policy processes. At a minimum, enforced shaming thorugh the burning of incredible sources would be an improvement.

Two case studies.

From Businessweek’s Joshua Green:

The story of Obamacare over the last year has in many ways been a story about how the various claims made by conservatives about why the law would collapse have systematically fallen apart as the Affordable Care Act has gone into effect….

Back in March, the Hill published a representative story under the headline, “O-Care Premiums to Skyrocket.” Here’s the gist:

Health industry officials say Obamacare-related premiums will double in some parts of the country, countering claims recently made by the administration…

Here’s the Hill’s story from this afternoon on what is actually happening to insurance premiums:

Obamacare Premiums Slated to Rise by an Average of 7.5 Percent

Premiums on Obamacare’s health insurance exchanges will rise by an average of 7.5 percent next year, according to a new analysis.

7.5% is not even remotely close to a doubling. The big thing is a combination of competition and the late March/early April enrollment rush was mostly made up of healthier people than the cohort of people who needed and bought coverage for January 1st. That should not be shocking as we are a nation of procrastinators unless there is a damn good reason to do something now. Sources should be burned, or at least brought on record to explain how they got things so wrong.

And now onto Case #2

Abbe Gluck at Politico notes another hole and potential legally sanctionable set of statements from the Halbig team:

It is no secret that the people bringing the challenge to the Obamacare subsidies in the Halbig and King cases—challenges now seeking review from both the full D.C. federal appellate bench and the U.S. Supreme Court after federal appellate courts in Virginia and D.C. came out in opposite ways last month—are some of the same people who brought the 2012 constitutional challenge to the Affordable Care Act before the high court (the same counsel, and one of the same plaintiffs).

What’s less known, however, is that in the 2012 constitutional case, these same challengers filed briefs describing Obamacare to the court in precisely the way they now say the statute cannot possibly be read. Namely, they assumed that the subsidies were available on the federal exchanges and went so far as to argue that the entire statute could not function as written without the subsidies….

From their reply brief

Indeed, the “critical feature” of those exchanges was the “greater standardization of health insurance policies” created by the effective end to individual underwriting. Id. Without that standardization, Congress’ goals in creating the exchanges “would be significantly frustrated.” Id. 46. Moreover, the federal subsidies are the incentive to participate in the exchanges, and without those subsidies, there will be no mechanism to sustain the exchanges. (p. 20, emphasis added)

I am not a lawyer, nor do I play one on the internet, but the courts really don’t like it when a petitioner says X in courtroom/case #1 and not X in courtroom/case #2 when X references the same thing. The Supreme Court dissenters embraced the non-Halbig ambiguoity repeatedly:

By contrast, because Congress thought that some States might decline federal funding for the operation of a “health benefit exchange,” Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State. See 42 U. S. C. §18041(c)(1).

The four dissenters on the Supreme Court thought that the intrepretation put forward by the IRS — namely tax credits for premium assistance would go to any purchase on any Exchange — was an accurate description of the law in 2012 when they were trying to gut it.

I am just reminded of Daniel Davies 1 minute MBA when I am looking at the Halbig ‘arguments’ — Good arguments and good policies don’t need lies told about them to sell.

So far Halbig has advocates lying through their teeth in creating false history and engaging in estoppal arguments. I think everyone attached to Halbig are in the running for assholes of the year.

26 replies
  1. 1

    Depends on the judge(s). A few I’ve encountered over the years really don’t seem to give a shit about that kind of inconsistency.

    However, most of them do and that’s a gambit I’d be real hesitant to take unless I knew the judge would let me get away with it.

  2. 2
    JPL says:

    It all depends on Roberts. One would hope that the Supreme Court would laugh at the plaintiff but unfortunately, the Supreme Court is partisan.

  3. 3
    Omnes Omnibus says:

    @CONGRATULATIONS!: I think it is more of a problem if any of the parties are the same. OTOH, making arguments that a statute can only be read one way and then arguing the opposite is an arguably frivolous argument.

  4. 4
    cmorenc says:

    @Richard Mayhew

    I think everyone attached to Halbig are in the running for assholes of the year.

    The sort of people attached to Halbig (or rooting from the sidelines for it to succeed) – being an asshole is a feature, not a bug. If this was not so, the likes of Rush Limbaugh would have a vastly smaller audience than they do, and the likes of Rep. Stephen King R-Ia would never be able to win reelection..

  5. 5
    Joe says:

    If I were a judge, I’d be re-reading the definition of “contempt of court” about now.

  6. 6
    cmorenc says:

    @Richard Mayhew:

    The four dissenters on the Supreme Court thought that the intrepretation put forward by the IRS — namely tax credits for premium assistance would go to any purchase on any Exchange — was an accurate description of the law in 2012 when they were trying to gut it.

    Don’t underestimate the agility of Antonin Scalia to fabricate some razzle-dazzle sophistry purporting to distinguish their reasoning in that dissent from the situation presented in Halbig.

  7. 7
    Diana says:

    The term you are looking for “re the courts really don’t like it when a petitioner says X in courtroom/case #1 and not X in courtroom/case #2 when X references the same thing” is “judicial estoppel.”

    From Wikipedia:

    “In the practice of law, judicial estoppel (also known as estoppel by inconsistent positions) is an estoppel which precludes a party from taking a position in a case which is contrary to a position they have taken in earlier legal proceedings. Although, in the United States, it is only a part of common law and therefore not sharply defined, it is generally agreed that it can only be cited if the party in question successfully maintained its position in the earlier proceedings and benefited from it.”

    And Wikipedia even gives a helpful example in the form of the Piscataqua River border dispute: ‘On May 29, 2001, Justice Ruth Bader Ginsburg delivered the 8–0 decision of the Court. (Justice Souter recused himself from the decision; although justices often do not disclose their reasons for recusal, it is most likely because he had been the Attorney General of New Hampshire and later an associate justice of the New Hampshire Supreme Court in the 1970s and 1980s.[2]) Justice Ginsburg wrote that “judicial estoppel bars New Hampshire from asserting that the Piscataqua River boundary runs along the Maine shore.” Under the judicial estoppel doctrine, “Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him…” Put simply: Since New Hampshire had agreed in 1977 that the border runs along the middle of the river, New Hampshire may not now claim that the border runs along the Maine riverbank. Wrote Justice Ginsburg: “New Hampshire’s claim that the Piscataqua River boundary runs along the Maine shore is clearly inconsistent with its interpretation of the words ‘Middle of the River’ during the 1970s litigation.”’

    Let’s hope Ginsburg writes the decision….

  8. 8
    dmbeaster says:

    This kind of advocacy should be enough to tank you in a normal case, but as noted above, we are dealing with a politicized conservative court that long ago threw normal legal principles out the window.

  9. 9
    Richard Mayhew says:

    @Omnes Omnibus: One of the plaintiffs is the same. And since the lawyer is an agent of the client, the plaintiff is making conflicting arguements… again, it depends on the judge, but it is just an affirmation of the load of BS inherent to the Halbig team.

  10. 10
    Omnes Omnibus says:

    @Diana: Are the parties the same in both of these cases? Many of the attorneys are the same, but judicial estoppel does not bind them in the same way. I would have no problem arguing one way for one client in the morning and taking the opposite position for a different client in the afternoon. The attorneys are making the arguments which best support their client’s position; they are not binding themselves forever to a specific viewpoint. IMO, the attorneys could only be in trouble if they argued that there is no other way to construe the statute when their arguments in the other show that there is. If they argue best way or proper way, there may be some embarrassment but no sanctions would be proper.

  11. 11
    Omnes Omnibus says:

    @Richard Mayhew: If the plaintiff is the same, judicial estoppel does apply with respect to that party. This is a major fuck-up on the part of that attorney. Oh, boy.

  12. 12
    Richard Mayhew says:

    @Omnes Omnibus: One of the plaintiffs is the same in NFIB v. Sebelius as well as Halbig v.Burwell —

  13. 13
    Omnes Omnibus says:

    @Richard Mayhew: I am doing this on my phone rigr now so I was sticking with caveats and hypotheticals

  14. 14
    Anoniminous says:

    @Omnes Omnibus:


    If a plaintiff declares X in a trial and the Judge rules not-X the ruling is “law” (to some extent or another.) Seems to me any further action by any plaintiff must be based on not-X including the original plaintiff.


  15. 15
    JustRuss says:

    7.5% huh? Let’s not forget that health insurance rates always increase, so let’s get some historical perspective on that number. Now I am just a simple caveman, but according to my friends at CNBC 7.5% is barely higher than normal over the last 6-7 years.

    Thanks Obama!

  16. 16
    Omnes Omnibus says:

    @Anoniminous: A lot of times “not x” or “x” is a highly fact driven decision. People can argue one or the other in subsequent cases based on facts being different. In this case, a party argued “x” and the Court made a decision without explicitly ruling “x” or “not x.” The party who argued “x” can’t tactically argue the opposite just because it is convenient.

  17. 17
    rumpole says:

    Clients are bound by positions, not lawyers. A defense lawyer who argues that the legal definition of premeditation does not include hiding in the bushes if you’re really nervous can go to the prosecutors office and argue the opposite the next week. Clients don’t have that particular luxury.

    Here, only one of the plaintiffs was in the obamacare litigation. He (she or it) is bound by the positions taken there. No one else is. And it might be a tall order to sanction his counsel for taking a different position if the counsel did not represent him at SCOTUS. All that he would have to do is disclaim that position for one client. Problem solved. Credibility problem begins.

  18. 18
    Omnes Omnibus says:

    @rumpole: I am just guessing here since I don’t have the briefs in front of me, but I would be shocked if the party did not have the same firm in this case as in NFIB.

  19. 19
    Richard Mayhew says:


    All that he would have to do is disclaim that position for one client. Problem solved. Credibility problem begins

    I am not a lawyer, nor do I play one on this blog, but from what I understand of Chevron, all the government needs to do is prove that there is ambiguity in the text. The plaintiff needs to prove that there is one and only one way the text could be read and that reading is amazingly clear to anyone.

    From there, the Government’s reading of the law and its policy actions have to pass a giggle test of plausibility but that is it. The IRS policy that tax credits apply to all qualified health plans (state run or Fed run or partnership sites) passes the giggle test. An IRS rule that says the tax credits apply to only people who do laundry on Tuesday AND mow the lawn in flipflops AND buy policies on Exchanges that don’t end in DOT ORG fails the giggle test.

  20. 20
    Richard Mayhew says:

    @Omnes Omnibus: Same counsel for Halbig and NFIB. So they should know what they wrote for the one client who is in both cases.

  21. 21
    Anoniminous says:

    @Omnes Omnibus:

    Got it. Thanks

  22. 22
    Omnes Omnibus says:

    @Richard Mayhew: You are describing the fundamental problem with the decision by the Halbig majority. It is so wrong that it is almost silly. This is why a lot of people are fairly sure it will be reversed by the court en banc.

  23. 23
    Diana says:

    @rumpole: amen!

    Just to clarify, judicial estoppel is not sanctions. Sanctions are for a frivolous argument (among other things); judicial estoppel is like res judicata — it just bars the argument, it does not imply the court should sanction the attorney for trying to make it.

    Attorneys make different arguments all the time, because the clients are different. While an attorney can argue that it might be reasonable for one client to hide in the bushes, the other side can argue that’s complete nonsense … and when the attorneys switch jobs, and the prosecutor joins the defense bar, the attorneys can switch arguments.

    The client, however, is supposed to take legally consistent positions on the same issue under the same statute.

  24. 24
    Omnes Omnibus (the first of his name) says:

    @Diana: To me, the possibility of sanctions (a distant possibility to be sure) comes in when if counsel states that the only permissible interpretation is “x” having argued for the same client that the only permissible interpretation of the same statute is “not x.” Making an argument that has been estopped and that one must know has been estopped is, in my view, presenting an argument for an improper purpose under 12(b)(1). YMMV.

  25. 25
    mclaren says:

    So far Halbig has advocates lying through their teeth in creating false history and engaging in estoppal arguments. I think everyone attached to Halbig are in the running for assholes of the year.

    Hilarious, coming from an insurance company CEO who has been lying through his teeth ever since he became a front-pager on this blog. Everyone here thinks you, Richard Mayhew, are in the running for asshole of the year.


    Because you focus on irrelevant minutia like improbable legal challenges to Obamacare, while ignoring the elephant in the room — the fact that the ACA is a giant scam designed to rape the consumer while creating the fiction that poor people are getting “health coverage.”

    The delusional premise of Obamacare is that making health care less costly will make it affordable. This has been the Republican fantasy behind health insurance ‘vouchers’ for the last three decades— give everyone a three-hundred dollar tax break to buy insurance and everyone will have health care. Obamacare is set up to give the poorest bottom-half of the country a choice between buying food, paying the rent and ‘buying’ health care. This ‘better than nothing’ approach dissuades people from getting health care until they have no other choice. Decades of experience from actual health care systems suggests that health care— keeping people healthy, is socially and economically less costly than treating people once they are sick. The second-order fantasy at work is that individuals can control health care costs by selecting health insurers that in turn select competent low cost health care providers. The amount of information needed to make the informed choice between policies that might actually accomplish this is beyond the ability of everyone likely to be touched by Obamacare. (Quick: what is the probability that an in network anesthesiologist will be available on any given day? Congratulations, you are one ten-thousandth of your way to making a decision).

    Source: “ObamaCare Clusterfuck: Complexifying the crapification is the new rescission,” Corrente website, Lambert Strother, 11 August 2014.

  26. 26
    ChesapeakeBlue says:

    This is a nice political and rhetorical point (that the Halbig legal team argued that the subsidies were integral to the ACA in earlier litigation), but there’s no legal conflict here. The issue of whether states had to run the exchanges in order for subsidies to apply simply was not part of the earlier case, which was about the constitutionality of the individual mandate. There is a doctrine of “judicial estoppel” that prevents a party from making representations to a court and then later trying to prove them wrong, but a court has to actually rely on those representations in making a decision. The Supreme Court decision on the individual mandate did not rely on any representation regarding whether subsidies are available on federally operated exchanges.

    And judicial estoppel applies only to a party – an attorney is not only free to take inconsistent positions from case to case, but is in fact obligated to do so if it is in the interest of the client being represented (doing it at the same time in the same court for two different clients could raise some credibility problems, though!).

    I think the DC Circuit’s decision is very wrong, but these atmospheric arguments don’t add much.

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