[EL] ELB News and Commentary 6/27/14
Rick Hasen
rhasen at law.uci.edu
Thu Jun 26 21:08:41 PDT 2014
"McDaniel Supporters Pore Over Ballots"
<http://electionlawblog.org/?p=62831>
Posted on June 26, 2014 9:06 pm <http://electionlawblog.org/?p=62831>by
Rick Hasen <http://electionlawblog.org/?author=3>
Clarion-Ledger
<http://www.clarionledger.com/story/news/2014/06/26/mcdaniel-supporters-pour-ballots/11424931/>:
A tea party official said today that a preliminary examination of
ballots cast in Tuesday's U.S. Senate race between incumbent Thad
Cochran and tea party backed challenger Chris McDaniel has found
irregularities in at least 800 ballots.
Mississippi Tea Party Chairwoman Laura Van Overschelde said the
examination of ballots isn't complete and will continue until all
ballots are examined.
As I noted earlier, <http://electionlawblog.org/?p=62821> it is not
clear if these "irregularities" concern ballots for which a plausible
claim of a tainted election may be raised.
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Posted in campaigns <http://electionlawblog.org/?cat=59>
"Bob Corker On Voting Rights Act: 'Cannot Imagine' Congress
Restoring It " <http://electionlawblog.org/?p=62829>
Posted on June 26, 2014 8:56 pm <http://electionlawblog.org/?p=62829>by
Rick Hasen <http://electionlawblog.org/?author=3>
HuffPo reports.
<http://www.huffingtonpost.com/2013/06/25/bob-corker-voting-rights-act_n_3499352.html>
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>, VRAA
<http://electionlawblog.org/?cat=81>
"Sessions opposes update to Voting Rights Act"
<http://electionlawblog.org/?p=62827>
Posted on June 26, 2014 8:54 pm <http://electionlawblog.org/?p=62827>by
Rick Hasen <http://electionlawblog.org/?author=3>
Gannett
<http://www.montgomeryadvertiser.com/story/news/2014/06/25/sessions-opposes-update-voting-rights-act/11364929/>:
Congress does not need to update the Voting Rights Act by restoring
special federal oversight of elections in a handful of states, Sen.
Jeff Sessions said today.
The Alabama Republican, who voted for the 2006 renewal of the Voting
Rights Act, said he can no longer support legislation that singles
out certain states for supervision based on their history of
discriminating against minority voters.
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>, VRAA
<http://electionlawblog.org/?cat=81>
#SCOTUS Underlines that Level of Scrutiny is Up for Grabs in
Campaign Contribution Cases <http://electionlawblog.org/?p=62825>
Posted on June 26, 2014 5:40 pm <http://electionlawblog.org/?p=62825>by
Rick Hasen <http://electionlawblog.org/?author=3>
Via <https://twitter.com/BrianSvoboda/status/482317303988510720>Brian
<https://twitter.com/BrianSvoboda/status/482317435689631744> Svoboda
<https://twitter.com/BrianSvoboda/status/482318190068768768> comes this
catch from today's Supreme Court abortion buffer zone case, McCullen v.
Coakley <http://www.supremecourt.gov/opinions/13pdf/12-1168_6k47.pdf>:
The Court does sometimes assume, without deciding, that a law is
subject to a less stringent level of scrutiny, aswe did earlier this
Term in McCutcheon v. Federal Election Commission, 572 U. S. ___,
___ (2014) (plurality opinion) (slip op., at 10). But the
distinction between that case and this one seems clear: Applying any
standard of review other than intermediate scrutiny in
McCutcheon---the standard that was assumed to apply---would have
required overruling a precedent. There is no similar reason to forgo
the ordinary order of operations in this case.
As Brian puts it, "If one favored relaxed scrutiny of contribution
limits, I don't know how much solace one'd find in that summary of
McCutcheon." Not that there's anything new, but it does underline the
uncertainty of the constitutional standard for all contribution limits
these days.
Also notable is the apparent equation of Buckley's "exacting scrutiny"
for contribution limits with "intermediate scrutiny."
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, Supreme
Court <http://electionlawblog.org/?cat=29>
"The Maddening Illogic of the IRS 'Coverup' Conspiracy Theory"
<http://electionlawblog.org/?p=62823>
Posted on June 26, 2014 3:30 pm <http://electionlawblog.org/?p=62823>by
Rick Hasen <http://electionlawblog.org/?author=3>
Brian Beutler
<http://www.newrepublic.com/article/118393/irs-scandal-conspiracy-theorists-fall-logical-trap>
writes for TNR.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>, tax law
and election law <http://electionlawblog.org/?cat=22>
Does McDaniel Think There are 35,000 Voters Who Voted in the Earlier
#MSSEN Democratic Primary? <http://electionlawblog.org/?p=62821>
Posted on June 26, 2014 2:58 pm <http://electionlawblog.org/?p=62821>by
Rick Hasen <http://electionlawblog.org/?author=3>
If McDaniel could
<http://talkingpointsmemo.com/livewire/chris-mcdaniel-election-law-concede-thad-cochran>
prove that, he would have strong grounds for an election contest.
Before the election, a joint Attorney General/SOS memo
<http://electionlawblog.org/?p=62662> made clear that those who already
voted in the Democratic primary could not vote again. But there's no
evidence offered so far
<https://twitter.com/samrhall/status/482239662338371585> that there are
thousands of such voters or any of the other alleged "rampant
irregularities <https://twitter.com/samrhall/status/482238468018692096>"
in the race.
If, on the other hand, McDaniel wants to go after Democrats who /did
not/ vote in the earlier primary on grounds they did not intend to vote
for a Republican in the fall, thatlegal theory seems quite weak f
<http://electionlawblog.org/?p=62735>or reasons I've given earlier.
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Posted in campaigns <http://electionlawblog.org/?cat=59>
Quote of the Day <http://electionlawblog.org/?p=62819>
Posted on June 26, 2014 2:35 pm <http://electionlawblog.org/?p=62819>by
Rick Hasen <http://electionlawblog.org/?author=3>
"Hey, what did I just tell you about home-state politics? Sometimes, you
step on your whatever."
---Sen. Harry Reid
<http://www.huffingtonpost.com/2014/06/26/harry-reid-daily-show_n_5533841.html?utm_medium=referral&utm_source=t.co>,
on his attempts to distinguish Koch money spent on elections from
Adelson money.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Another Reason to Expect #SCOTUS To Take Same Sex Marriage Case
Soon: A Circuit Split <http://electionlawblog.org/?p=62817>
Posted on June 26, 2014 12:48 pm <http://electionlawblog.org/?p=62817>by
Rick Hasen <http://electionlawblog.org/?author=3>
Emily Bazelon writes
<http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2014/scotus_roundup/scotus_end_of_term_scalia_and_breyer_face_off_over_aereo.html>
over at /Slate/'s Breakfast Table responding to a post of mine
<http://electionlawblog.org/?p=62761> suggesting the 10th Circuit Utah
marriage decision <http://www.ca10.uscourts.gov/opinions/13/13-4178.pdf>
is heading to the Supreme Court as soon as next term:
Rick Hasen <http://electionlawblog.org/?p=62761>and plenty of
other people think this means gay marriage is headed back to the
justices as early as next term. So far, though, there's no split
over gay marriage in the lower courts since the DOMA ruling. Anyone
want to subscribe to my (minority) theory that gay marriage could
become the law of the land without another word from the high court?
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/05/with_pennsylvania_gay_marriage_gets_its_18th_straight_win_who_needs_the.html>
Gay marriage has so much righteous momentum behind it---maybe it
doesn't need another push from Kennedy. Though surely, with a record
of 20--0 this year in the lower courts, he will be ready to give it.
Emily says there's no split over same sex marriage since /Windsor/, and
she's right on that (all we have is the dissenting judge in the Utah
appeal so far). But a reader points me to a pre-/Windsor/ Eighth Circuit
case, Citizens/*for Equal Protection v. Bruning*/, 455 F.3d 859 (8th
Cir. 2006).
<http://electionlawblog.org/media.ca8.uscourts.gov/opndir/06/07/052604P.pdf>
This indeed is a circuit split. Further the Eighth Circuit and the Tenth
Circuit disagree on the continued vitality of the Supreme Court's
summary decision in /Baker v. Nelson/, rejecting a constitutional right
to same sex marriage.
So this marginally increases the chances that the Supreme Court will
take the case. (I think they'd take it without the split, for reasons
I've given <http://electionlawblog.org/?p=62761>.)
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>
"Judiciary Chairman In No Rush To Move On Voting Rights Act
Restoration" <http://electionlawblog.org/?p=62815>
Posted on June 26, 2014 12:36 pm <http://electionlawblog.org/?p=62815>by
Rick Hasen <http://electionlawblog.org/?author=3>
Kate Nocera reports
<http://www.buzzfeed.com/katenocera/judiciary-chairman-in-no-rush-to-move-on-voting-rights-act-r>for
BuzzFeed.
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15>, VRAA
<http://electionlawblog.org/?cat=81>
"Scott Walker not a target, John Doe special prosecutor says"
<http://electionlawblog.org/?p=62813>
Posted on June 26, 2014 12:36 pm <http://electionlawblog.org/?p=62813>by
Rick Hasen <http://electionlawblog.org/?author=3>
The /Wisconsin State Journal/ reports.
<http://host.madison.com/wsj/news/local/govt-and-politics/article_9d5579ed-039d-5f22-ac98-947469c3c22d.html#.U6xp9LmMIJU.twitter>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
chicanery <http://electionlawblog.org/?cat=12>
"Risky Business? Political Spending, Shareholder Approval, and Stock
Volatility" <http://electionlawblog.org/?p=62810>
Posted on June 26, 2014 11:12 am <http://electionlawblog.org/?p=62810>by
Rick Hasen <http://electionlawblog.org/?author=3>
Saumya Prabhat and David Primo have postedthis draft
<http://www.rochester.edu/college/psc/primo/PrabhatPrimoRiskyBusinessJune2014.pdf>(a
version of which will be presented at the APSA Law and Political Process
Study Group panel <http://electionlawblog.org/?p=62039> on campaign
disclosure). Here is the abstract:
We utilize a quasi-natural experiment to examine whether disclosure
and shareholder approval of political expenditures reduces
shareholder risk. In particular, we examine the Neill Committee
Report (NCR), which led to the passage of the United Kingdom's
Political Parties, Elections and Referendums Act 2000 (PPERA) and
strengthened disclosure of and required shareholder approval for
campaign contributions. Using a differences-in-differences
methodology, we find that politically active firms saw an increase
in their stock's volatility along with negative long-term abnormal
stock returns upon the release of the NCR. These results present a
challenge to arguments for greater shareholder oversight of
corporate political activities.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"McDaniel still pondering challenge"
<http://electionlawblog.org/?p=62808>
Posted on June 26, 2014 9:05 am <http://electionlawblog.org/?p=62808>by
Rick Hasen <http://electionlawblog.org/?author=3>
Clarion Ledger:
<http://www.clarionledger.com/story/news/2014/06/25/mcdaniel-still-pondering-challenge/11385735/>
The day after incumbent U.S. Sen. Thad Cochran won the GOP primary
runoff, challenger Chris McDaniel had not conceded and said his team
would be looking at voting irregularities "in coming days" to
determine whether to challenge the results.
McDaniel's campaign spokesman Noel Fritsch, reached by phone late
Wednesday morning, promptly hung up without answering questions
about McDaniel's next move but later issued a written statement from
McDaniel. McDaniel also appeared on the Sean Hannity radio show.
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Posted in campaigns <http://electionlawblog.org/?cat=59>
"A year later, Holder, civil rights groups decry impact of voting
rights ruling" <http://electionlawblog.org/?p=62806>
Posted on June 26, 2014 9:03 am <http://electionlawblog.org/?p=62806>by
Rick Hasen <http://electionlawblog.org/?author=3>
Greg Gordon reports
<http://www.mcclatchydc.com/2014/06/25/231505/a-year-later-holder-civil-rights.html?sp=/99/104/>for
McClatchy.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15>
"Happy birthday, super PAC!" <http://electionlawblog.org/?p=62804>
Posted on June 26, 2014 8:54 am <http://electionlawblog.org/?p=62804>by
Rick Hasen <http://electionlawblog.org/?author=3>
CPI reports.
<http://www.publicintegrity.org/2014/06/26/15002/happy-birthday-super-pac>
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
Politico Magazine Special Report on Money and Politics
<http://electionlawblog.org/?p=62802>
Posted on June 26, 2014 8:49 am <http://electionlawblog.org/?p=62802>by
Rick Hasen <http://electionlawblog.org/?author=3>
Featuring 5 articles
<http://www.politico.com/magazine/story/2014/06/checks-and-imbalances-108193.html#.U6xAgKgWeAc>:
*The Pitchforks are Coming... For Us Plutocrats*
<http://www.politico.com/magazine/story/2014/06/the-pitchforks-are-coming-for-us-plutocrats-108014.html#.U6vvdo1yF8Y>
A memo to my fellow zillionaires.
/By Nick Hanauer/
*The Myth of America's Golden Age*
<http://www.politico.com/magazine/story/2014/06/the-myth-of-americas-golden-age-108013.html>
What growing up in Gary, Indiana, taught me about inequality.
/By Joseph E. Stiglitz/
*Karl Rove and the Modern Money Machine*
<http://www.politico.com/magazine/story/2014/06/karl-rove-and-the-modern-money-machine-108019.html#.U6vxio1yF8Y>
His shadow GOP spent $1 billion trying---and failing---
to defeat Obama and the Dems in 2012. Will 2014 offer
redemption?
/By Kenneth P. Vogel/
*King Rex*
<http://www.politico.com/magazine/story/2014/06/king-rex-sinquefield-108015.html#.U6vwQ41yF8Y>
A stock baron goes all in on Missouri politics.
/By Lee Fang/
*The Art of the Fat Cat*
<http://www.politico.com/magazine/gallery/2014/06/the-art-of-the-fat-cat/001909-027223.html#.U6vwnI1yF8Y>
Two centuries of soaking the rich---with ink.
/By Matt Wuerker/
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
"Federal prosecutors say Ben Suarez tried to buy influence from Josh
Mandel, Jim Renacci" <http://electionlawblog.org/?p=62800>
Posted on June 26, 2014 8:42 am <http://electionlawblog.org/?p=62800>by
Rick Hasen <http://electionlawblog.org/?author=3>
Closing arguments
<http://www.cleveland.com/court-justice/index.ssf/2014/06/federal_prosecutors_say_ben_su.html>
in Ohio.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>,
chicanery <http://electionlawblog.org/?cat=12>
"Voter Knowledge of Candidates' Judicial Philosophies"
<http://electionlawblog.org/?p=62798>
Posted on June 26, 2014 8:37 am <http://electionlawblog.org/?p=62798>by
Rick Hasen <http://electionlawblog.org/?author=3>
Craig Burnett and Lydia Brashear Tiede have postedthis draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2456737> on SSRN
(forthcoming, /Judicature/). Here is the abstract:
Judicial elections are typical "down ballot" elections, rarely
capturing the interest of most voters. To help distinguish
themselves at the polls, judicial candidates have begun to publish
their decision-making philosophies with the apparent hope of
informing voters. Using survey data collected during the 2012
elections, we explore how well individuals understand such philosophies.
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Posted in judicial elections <http://electionlawblog.org/?cat=19>
"Kasich, Mandel, Husted, DeWine won't testify in case"
<http://electionlawblog.org/?p=62792>
Posted on June 26, 2014 8:31 am <http://electionlawblog.org/?p=62792>by
Rick Hasen <http://electionlawblog.org/?author=3>
The latest
<http://www.cincinnati.com/story/news/politics/2014/06/24/kasich-fights-subpoena-testify-federal-trial/11303647/>from
Ohio.
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Posted in campaign finance <http://electionlawblog.org/?cat=10>
What the EPA case *Really* Has to Say About the ObamaCare Subsidies
Lawsuits <http://electionlawblog.org/?p=62793>
Posted on June 26, 2014 8:31 am <http://electionlawblog.org/?p=62793>by
Abbe Gluck <http://electionlawblog.org/?author=15>
The proponents of the ObamaCare tax subsidies law suit (currently
pending in both the D.C. and Fourth Circuits and which I have discussed
here
<http://balkin.blogspot.com/2013/12/how-congress-works-and-obamacare.html>,
here
<http://balkin.blogspot.com/2014/03/obamacare-subsidies-before-dc-circuit_24.html>,here
<http://www.nejm.org/doi/full/10.1056/NEJMp1400707>, and here
<http://balkin.blogspot.com/2012/07/cbo-canon-and-debate-over-tax-credits.html>)
have seized on the Court's recent decision in /Utility Air Regulatory
Group v. EPA
<http://www.supremecourt.gov/opinions/13pdf/12-1146_4g18.pdf>/---going
so far as to file letters of supplemental authority with both courts
highlighting the case as additional relevant authority for the subsidies
suits.We should hope that the courts understand the Affordable Care
Act---and the specifics of the subsidies challenge---well enough to
understand how different these cases are.There is also much in /Utility
Air/, not mentioned by the challengers, that supports the Government's
position in the ACA case, and that should resonate with even the most
textualist of judges.
The ACA challengers' filings and blog posts highlight the part of
/Utility Air/ in which the Court refused to let EPA "tailor" the Clean
Air Act's explicit pollution thresholds (raising them higher than the
statutory allowance because greenhouse gas emissions are much greater
than conventional pollutants).They also highlight the Court's invocation
of the so-called "major questions" rule---the presumption that Congress
does not delegate decisions to agencies of vast economic and political
significance without making that delegation clear.
The subsidies challenges present completely different facts.The issue in
those cases is whether a line in the ACA that provides that the
subsidies shall be available to individuals enrolled in insurance
"through an Exchange established by the State under section 1311,"
clearly also excludes individuals enrolled through federally-operated
exchanges.The challengers have made this argument because more than half
of the states are using federal exchanges and denying the subsidies on
those exchanges would be lethal to the ACA's operation. Both HHS and the
IRS have interpreted the statute as providing the subsidies on the
insurance exchanges operated by both the state and the federal
governments.Their interpretation is based on the fact that numerous
other provisions of the statute, as elaborated in the government's
briefings, would be nonsense and superfluous under the challengers'
reading.One of many possible examples is ACA §36B(f), whichprovides that"
"Each Exchange (or any person carrying out 1 or more
responsibilities of an Exchange under section 1311(f)(3) or 1321(c)
of the Patient Protection and Affordable Care Act) shall provide the
following information to the Secretary and to the taxpayer with
respect to any health plan provided through the Exchange:... (C) The
aggregate amount of any advance payment of such credit or reductions"
Section 1311 refers to the state exchanges; section 1321 refers to the
federal exchanges. Half of this section---which requires reporting to
the IRS of the amount of the subsidies offered on /both/
exchanges---would be superfluous the subsidies were not available on the
federal exchange. It also would be nonsense.
Enter /Utility Air/.In the key first part of the opinion, not
highlighted by the challengers, the Court, first, emphasizes that
/Chevron/ deference applies to an agency's reasonable construction of a
statutory ambiguity; and second, emphatically rejects overly literal,
a-contextual readings of statutes that do not consider how statutory
terms functions in their broader context within the statute as a
whole.From Justice Scalia's opinion in /Utility Air:/
"To be sure, Congress's profligate use of "air pollutant" where
what is meant is obviously narrower than the Actwide definition
is not conducive to clarity. One ordinarily assumes "'that
identical words used in different parts of the same act are
intended to have the same meaning.'" /Environmental Defense /v.
/Duke Energy Corp./, 549 U. S. 561, 574 (2007). In this respect
(as in countless others),the Act is far from a /chef d'oeuvre
/of legislative draftsmanship. But we, and EPA, must do our
best, bearing in mind the "'fundamental canon of statutory
construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory
scheme.'" /FDA /v. /Brown & Williamson Tobacco Corp./, 529 U. S.
120, 133 (2000). As we reiterated the same day we decided
/Massachusetts/, the presumption of consistent usage "'readily
yields'" to context, and a statutory term---even one defined in
the statute---"may take on distinct characters from association
with distinct statutory objects calling for different
implementation strategies."
In case of the subsidies, it is clear beyond cavil that, in the
context of the ACA as a whole, the subsidies are available on the
federalexchanges.Indeed, J/ustice Scalia himself/---in the Joint Dissent
authored by Justices Scalia, Thomas, Kennedy and Alito, in NFIB
<http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf>(the major
2012 constitutional challenge to health reform )described the ACA's
state-federal health exchange division-of-labor without any doubt as to
the provision of the subsidies on federal exchanges.In fact, the Joint
Dissent goes further, arguing that the exchanges will /collapse /without
the subsidies and the Act will not function as Congress intended:
"Congress thought that some States might decline federal funding for
the operation ofa "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)."
and then:
"The Act's design is to allocate billions of federal dollars to
subsidize individuals' purchases on the exchanges. .. By 2019, 20
million of the 24 million people who will obtain insurance through
an exchange are expected to receive an average federal subsidy of
$6,460 per person. See CBO, Analysis of the Major Health Care
Legislation Enacted in March 2010, pp. 18--19 (Mar. 30, 2011)."
and then:
"In the absence of federal subsidies to purchasers, insurance
companies will have little incentive to sell insurance on the
exchanges. Under the ACA's scheme, few, if any, individuals would
want to buy individual insurance policies outside of an exchange,
because federal subsidies would be unavailable outside of an
exchange. ... That system of incentives collapses if the federal
subsidies are invalidated. Without the federal subsidies,
individuals would lose the main incentive to purchase insurance
inside the exchanges, and some insurers may be unwilling to offer
insurance inside of exchanges. With fewer buyers and even fewer
sellers, the exchanges would not operate as Congress intended and
may not operate at all."
The Joint Dissent's understanding of how the statute operates
came from a holistic reading of the statute---the statute as a whole, in
context, as any good textualist should read it, and as Justice Scalia
himself has been arguing for years how good textualists /do/ read
statutes.For the subsidies-case challengers now to argue that it was
clear Congress intended something different flies in the face of all the
evidence we have from Congress and the states (as I elaborated here
<http://balkin.blogspot.com/2014/03/obamacare-subsidies-before-dc-circuit_24.html>)
and, from the Court itself in /NFIB/.The D.C. District Court found the
ACA so clear on the allowance of the federal exchange subsidies that it
did not even go to /Chevron/ deference.But at a minimum, the statutory
context as a whole creates an ambiguity that has been reasonably
resolved by both federal agencies---HHS and the IRS---explicitly
delegated the authority to interpret these provisions. Contrary to the
challengers' new arguments based on /Utility Air/, the IRS and HHS are
not doing anything like "tailoring" the ACA's clear text to new
circumstances; rather, they are enforcing the ACA as written.
Finally, with respect to the major questions rule---the presumption that
Congress does not silently give agencies the power to decide questions
of major economic or political significance---that rule cuts exactly in
the opposite direction in the subsidies case as in the EPA case.In the
subsidies case, had HHS or the IRScome out with the opposite
interpretation---allowing subsidies on only the state exchanges---the
result would have been, as Justice Scalia himself agreed in the /NFIB
/Joint Dissent---the /complete collapse/ of the ACA's insurance regime.
Such an agency interpretation would have denied the subsidies---and so
denied health insurance---to the more than 12.5 million Americans
expected to be eligible for subsidies in federal-exchange states.If that
interpretation---the opposite interpretation as the one actually adopted
by HHS and IRS---wouldn't constitute a decision of enormous political
and economic significance that Congress couldn't possibly have intended
an agency to make---what would?
[cross posted at Balkinization
<http://balkin.blogspot.com/2014/06/what-epa-case-really-has-to-say-about.html>
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Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
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