1) A lot of the liberal commentary about this week’s D.C. Circuit decision on Obamacare is hard to square with the way liberal judges have tended to approach these cases. I have in mind the commentators who say the decision is “corrupt,” its theory “preposterous,” and the conservatives who support it “dishonest.”
As Josh Blackman points out, most of the liberal judges who have sided in the end with the administration’s position have not said that it is simply obvious that the text of the legislation authorizes tax credits in states where state governments did not set up exchanges. They have said that the text is ambiguous and given the administration the benefit of the doubt. Some of these liberal judges have gone even further, and rejected common liberal claims that the legislative history of Obamacare clearly shows that Congress intended to make tax credits available on the federal exchange.
I prefer Judge Griffith’s ruling for the D.C. Circuit to Judge Gregory’s, but Judge Gregory’s showed a much better grasp of the issues than a lot of its fans.
2) Some of the liberal commentary seems to me to misunderstand the argument about the tax-credit issue in a more specific way. The other day I tweeted, “A foresight error is not a drafting error.” Some liberals (I have in mind Brian Beutler among others) have taken my tweet to imply an argument that runs as follows: Congress wrote the text of Obamacare in a way that tied tax credits to the state establishment of exchanges, and it did that because it wanted to create an incentive for the states to create those exchanges. The Democrats in Congress just didn’t foresee that the incentive would fail to work and that this feature of their plan would backfire.
I think there’s no question that if Democrats in Congress had imagined that four years after the law was enacted 36 states would not have set up exchanges, they would have written the law differently. But they didn’t foresee that eventuality, and so they enacted the law they enacted. That’s what I meant about lack of foresight.