Halbig if sustained could force higher premiums on millions of people, making health insurance unaffordable. The wages of textualism is death. This is why the DC. Circuit is so important. Is there an en banc majority that will stay this? And then what happens upstairs at SCOTUS? - gwc
Update - see Gluc on the win in the Fourth Circuit - a unanimous decision also issued today.
Balkinization: The Loss in Halbig:
Abbe Gluck
As Marty [Lederman] notes, the opinion is out. Initial quick reaction, more to come: The opinion is terribly disappointing from a statutory interpretation perspective. It relies in part on irrelevant legislative history (from the HELP committee, whose bill wasn't even the basis for these provisions--the Finance committee's was) and gets it wrong anyway (as I argued here); it bends over backwards to come up with reasons why Congress might have intended this result (which we all know it certainly did not); and it attaches far too much significance to a line in the statute that expressly deems exchanges in the territories to be state exchanges and does not replicate the special deeming language for the federal exchanges. The territories language is boilerplate language used by Congress when talking about territories in statutes even beyond the ACA, and should have been attached no significance here. What's more, applying theexclusio unius presumption (that when Congress specifies X we can assume that it meant not to specify X elsewhere) to a statute as long and complicated as the ACA -- and one that did not go through the usual linguistic "clean up" process in Conference (as I wrote here) does a disservice to textualism and all those who have defended it over the years--turning it into a wooden unreasonable formalism rather than the sophisticated statutory analysis that textualists have been claiming they are all about.
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Update - see Gluc on the win in the Fourth Circuit - a unanimous decision also issued today.
Balkinization: The Loss in Halbig:
The Loss in Halbig
As Marty [Lederman] notes, the opinion is out. Initial quick reaction, more to come: The opinion is terribly disappointing from a statutory interpretation perspective. It relies in part on irrelevant legislative history (from the HELP committee, whose bill wasn't even the basis for these provisions--the Finance committee's was) and gets it wrong anyway (as I argued here); it bends over backwards to come up with reasons why Congress might have intended this result (which we all know it certainly did not); and it attaches far too much significance to a line in the statute that expressly deems exchanges in the territories to be state exchanges and does not replicate the special deeming language for the federal exchanges. The territories language is boilerplate language used by Congress when talking about territories in statutes even beyond the ACA, and should have been attached no significance here. What's more, applying theexclusio unius presumption (that when Congress specifies X we can assume that it meant not to specify X elsewhere) to a statute as long and complicated as the ACA -- and one that did not go through the usual linguistic "clean up" process in Conference (as I wrote here) does a disservice to textualism and all those who have defended it over the years--turning it into a wooden unreasonable formalism rather than the sophisticated statutory analysis that textualists have been claiming they are all about.
'via Blog this'
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