Some Irony

by Ed Whelan

Law professor Rick Hasen perceives some “great irony” in “those who up until yesterday supported the DC Circuit’s strict textualist reading of the ACA now pointing to a statement made by a supporter of the law involved in its drafting as evidence of the statute’s meaning.” (My emphasis.) He links to my post from this morning.

There is no irony at all. I have not cited Gruber’s statement “as evidence of the statute’s meaning.” My post does little more than quote from Gruber’s statement and link to Michael Cannon’s long post, where Cannon writes (emphasis added0:

I don’t mean to overstate the importance of this revelation. Gruber acknowledging this feature of the law is not direct evidence of congressional intent. But Gruber is probably the most influential private citizen/government contractor involved in that legislative process. He was in the room with the people who crafted this bill. There may be videos of them talking about this feature too. (I wouldn’t know; I only researched congressional statements made pre-enactment.) At a minimum, however, with the D.C. Circuit and the Fourth Circuit and now Jonathan Gruber lining up against the idea that it is implausible that Congress could have meant what it said, we can dispense with that argument once and for all.

The D.C. Circuit majority concluded (1) that “established by the State” means established by the State, (2) that this meaning does not render Obamacare absurd, and (3) that the legislative history provides little indication, one way or the other, of congressional intent. Cannon properly uses Gruber’s statement in support of the second point.

More generally, it’s a routine part of debate to refute the other side’s case by arguing in the alternative: e.g., your point is irrelevant, but even if it were relevant, it’s factually wrong. Someone, for example, who believes that legislative history shouldn’t be consulted as evidence of the meaning of a statutory provision isn’t engaging in a “great irony” when he points out that the other side gets the legislative history wrong.

For what it’s worth—not that it matters here—as a general matter I of course can’t fairly be thought to embrace every part of a post that I approvingly cite.

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