Paul Krugman on the new Supreme Court ObamaCare case

[cross-posted from Cato at Liberty and expanded with a P.S.]

Even by his standards, Paul Krugman uses remarkably ugly and truculent language in challenging the good faith of those who take a view opposed to his on the case of King v. Burwell, just granted certiorari by the Supreme Court following a split among lower courts. Krugman claims that federal judges who rule against his own position on the case are “corrupt, willing to pervert the law to serve political masters.” Yes, that’s really what he writes – you can read it here.

A round of commentary on legal blogs this morning sheds light on whether Krugman knows what he’s talking about.

“Once upon a time,” Krugman claims, “this lawsuit would have been literally laughed out of court.” [Citation needed, as one commenter put it] The closest Krugman comes to acknowledging that a plain-language reading of the statute runs against him is in the following:

But if you look at the specific language authorizing those subsidies, it could be taken — by an incredibly hostile reader — to say that they’re available only to Americans using state-run exchanges, not to those using the federal exchanges.

New York City lawyer and legal blogger Scott Greenfield responds:

If by “incredibly hostile reader,” Krugman means someone with a basic familiarity with the English language, then he’s right.  That’s what the law says. … There is such a thing as a “scrivener’s error,” that the guy who wrote it down made a mistake, left out a word or put in the wrong punctuation, and that the error was not substantive even though it has a disproportionate impact on meaning.  A typo is such an error.  I know typos. This was not a typo. This was not a word misspelled because the scribe erred.  This was a structural error in the law enacted. Should it be corrected? Of course, but that’s a matter for Congress.

While some ObamaCare proponents may now portray the provision as a mere slip in need of correction, as I noted at Overlawyered in July, “ObamaCare architect Jonathan Gruber had delivered remarks on multiple 2012 occasions suggesting that the lack of subsidies for federally sponsored exchanges served the function (as critics had contended it did) of politically punishing states that refuse to set up exchanges.”

Josh Blackman, meanwhile, points out something incidental yet revealing about Krugman’s column: its homespun introductory anecdote about how his parents discovered that they had been stuck with a mistaken deed to their property, fixed (“of course”) by the town clerk presumably with a few pen strokes and a smile, couldn’t possibly have happened the way Krugman said it did. Property law, much more so than statutory construction, is super-strict about these matters.

If your deed is incorrect, you cannot simply get the “town clerk” to “fix the language”. … Mistakes are enforced by courts. That’s why [everyone] should purchase title insurance. …

So this is the exact opposite example of what Krugman would want to use to illustrate why King is “frivolous.” If courts applied property doctrine to the construction of statutes, this case would be over in 5 seconds. The government loses.

To be sure, there may be better arguments with which to defend the Obama administration’s side of the King case. But do not look for them in Paul Krugman’s commentary, which instead seems almost designed to serve the function of pre-gaming a possible defeat in King by casting the federal judiciary itself as “corrupt” and illegitimate.

P.S. “Krugman’s column in today’s NYT on King is the liberal equivalent of a Rush Limbaugh tirade.” [Gerard Magliocca] Krugman not notably consistent on views of statutory interpretation [Simon Lester] ObamaCare architect Jonathan Gruber caught on camera saying “lack of transparency” key to passing the bill; he “may believe that American voters are stupid, but he was the one dumb enough to say all this on camera” [Peter Suderman, Mickey Kaus (“I am big. It’s the electorate that got small.”)] How to argue the administration side in a less unhinged way than Krugman does [David Ziff via Jonathan Adler]


  • It’s the editorial pages of otherwise excellent papers that drive me away. I gave up reading the Wall Street Journal in 1993 when they announced that Clinton’s administration was a complete failure… a week before the inauguration.

    For the past week, the op-ed pieces on the online New York Times have been concentrating on the negative aspects that the Republicans used to win the election, as if that invalidated the results. I have not noticed any discussion of Democratic missteps that might account for the results; no consideration of the common phenomenon that, after a period of rapid social legislation, the electorate might wish to take a breather; no hint that vast, poorly written, possibly punitive laws may have triggered a sea change for a nation that has realized that many of our problems need to be solved individually instead of by huge laws bureaucratically administered; no sense that we all want this to be a wealthy country in which the necessities are provided for all, but disagree on how to best achieve and maintain that. Instead, anyone who disagrees on any position is written off as corrupt and evil. Arrest the Supreme Court on charges of treason! Their clerks will be the necessary witnesses!

    Krugman’s tantrum is not really substantial. It’s more on the order of a small boy, on being told that he can’t have a pet giraffe, announcing he hates his mommy.

    I’ll keep on reading the Times online, for the bridge column, the obituaries and the useful articles in the Dealbook section. It’s a good thing it’s free, though.


  • Krugman tells whoppers all the time. I remember during the housing collapse he’d misstate the deductibility of mortgage interest for “the rich”. (Turns out it’s not deductible due to AMT and other phase-outs. Only the poor and middle benefited from it.)

  • Here’s the problem. If subsidies were intended to only be offered on state-operated exchange as a threat to get the states to operate their own exchanges, why did absolutely no one know this? It’s not much of a threat if it’s a secret.

    Had anyone been aware of the threat, surely it would have come up in the debates that every state underwent when deciding whether to start a state-run exchange. States had to weigh the potential costs and benefits of starting their own exchanges, a highly politicized task in many states. In that debate, absolutely no one even mentioned that by not starting an exchange, their constituents would miss out on the benefit of one of the central pieces of the law: subsidies.

    Even if you believe this was all kept a secret to get the bill passed, why did no one mention it later when the ACA’s champions were encouraging states to start their own exchanges?

  • Actually, Krugman may be correct about the deed. Recently, a reporter obtained [fradulent] title to the Empire State Building simply by going to the Registrar of Deeds office and convincing a clerk to issue it to him. Any legal system is only as good as the least competent/corrupt link. As evidence, I submit the DOJ.

  • Another gem of a quote from Krugman’s column:

    “Just as an aside, so far this system seems to be working very well. Enrollment is running above expectations, premiums well below, and more insurance companies are flocking to the market.”

    This guy will say anything. He could make Bill Clinton blush. And he’s the cream of the crop of liberal pundits! Oy.

  • Krugman was one of my favorite columnists when he exposed the flimflam of the G.W. Bush years. With his own side in office, however, he has become a sycophant and hack.

  • … Paul Krugman’s commentary, which instead seems almost designed to serve the function of pre-gaming a possible defeat in Kingby casting the federal judiciary itself as “corrupt” and illegitimate.

    The federal judiciary are political appointees. If politicians write legislation which isn’t transparent and relies on the stupidity of the American voter, why are we to think their appointees aren’t as corrupt?

  • […] claim that the higher federal courts are “corrupt.” It is just ridiculous, as we noted the other day, and it’s nice to hear Krugman called out for it at his own university by someone in a […]

  • You are completely wrong about the ACA’s language. My state had a debate about whether to set up an exchange and no one, and I mean no one, every brought up the possibility that subsidies’ availability would be affected depending on what was decided.

    In addition, the CBO created estimates consistent with what the Obama administration is arguing.

    The claim that this is a real thing and not a drafting error is wholly specious.

  • A different view here.

  • […] “corruption” in the courts, a claim the indispensable Walter Olson demolishes here. As several bloggers noted, Krugman was a big supporter of the Platinum Coin Caper, where he said, […]