- King v. Burwell: next ObamaCare showdown at Supreme Court [Ilya Shapiro and Josh Blackman, David Bernstein on Cato brief, Adler v. Bagley Federalist video, Michael Greve with theory of Justice Kennedy riding off to Colorado with Dagny, earlier]
- “J&J says women being illegally solicited to join in mesh lawsuits” [Jessica Dye/Reuters, same on lawyers’ response, more on which]
- Invoking ACA, feds regulate non-profit hospitals to require periodic community needs assessment, limit collection methods [Treasury]
- Unless judges are vigilant, lawyers will take advantage of mass tort joinder to evade CAFA limits on forum-shopping [Steven Boranian, Drug & Device Law]
- Popular literature on IRBs/consent of research subjects can employ dubious definitions of “coercion” [Simon Whitney via Zachary Schrag]
- Qui tam lawyers vs. pharmaceutical companies, some empirical findings [Bill of Health]
- So that’s what “anatomical theatre” means: researcher checks into ostensible open-source medical journals and finds many “had suspicious addresses; one was actually inside a strip club.” [Fast Company on report finding that fake paper was accepted for publication by 17 journals]
- A student of David Henderson’s recalls the state of medicine under the Soviets: assignment to providers based on place of residence; the role of gifts, favors, and clout; how idealistic doctors became cynics; the black market as a safety valve. [EconLog]
- Furious over EEOC attack on wellness programs, CEOs threaten to suspend their support for ObamaCare [Reuters] Had it been common knowledge that CEOs covertly support ObamaCare, then? And isn’t the EEOC formally an independent agency not answerable to White House directives?
- If more editors handled situations this way, readers would think better of the press: Annalee Newitz of io9 offers “apology and analysis” for running tendentious, ill-reported article attacking animal-based research;
- Success of personal injury litigation is reshaping nursing home business in some states [WSJ]
- “With the Advent of Mandatory Paid Sick Leave in California, Here are a Few Sick Leave Excuses” [Coyote, related Massachusetts]
- Really, it’s not a shock-scandal that rules for human-subjects research might be written by actual scientists [Zachary Schrag, IRB Blog]
- In combating diseases of poverty, you’d think economic growth would top the list of remedies [Bryan Caplan]
- Judge slices $9 billion punitive Actos award against Takeda and Lilly by 99% [Bloomberg, earlier]
- “Grubergate, the Mini-Series” [Michael Cannon; more from Cannon on Supreme Court’s grant of certiorari in King v. Burwell 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]
A panel of the D.C. Circuit ruled today that the IRS is not free to rewrite the ObamaCare statute to extend tax credits from users of state-run health exchanges, as per the law’s language, to users of the federal exchange as well, because the federal government is not a “State.” [Halbig v. Burwell; Ilya Shapiro, Cato] Later today, a panel of the Fourth Circuit ruled that yes, it’s free to do so. [King v. Burwell] Given the instant one-day circuit split and the importance of the issue, further court consideration is inevitable, and the Obama administration has already indicated that it will seek en banc consideration by the full D.C. Circuit, packed with its own recent appointees. More: The work of my Cato colleague Michael Cannon and Case Western lawprof Jonathan Adler helped undergird the suit; Cannon has commentary here and here and Adler here and here.
I wrote two posts at Cato on yesterday’s major Supreme Court decisions:
* Why Harris v. Quinn is a bigger deal than Burwell v. Hobby Lobby Stores (spoiler: constitutional vs. statutory interpretation).
* if you like what today’s Supreme Court conservatives just did, thank yesterday’s liberals, and vice versa. By the way, I suspect the abortion buffer-zone cases also fit this pattern. For several decades (down through the 1990s, maybe?) liberals would have generally been the ones relatively sensitive to the rights of street protesters, while conservatives were relatively sensitive to the case for a legitimate police-power role in protecting property owners/tenants from ongoing sidewalk occupation that might deprive them of peaceful enjoyment of their premises.
Earlier on Hobby Lobby here, etc., and on Harris v. Quinn here, etc. Welcome readers from SCOTUSBlog, Steve Stanek/Heartland, etc. And Virginia Postrel makes the case for making contraception over-the-counter, which would largely remove employers from the equation while widening access greatly.