“For years, Harvard’s experts on health economics and policy have advised presidents and Congress on how to provide health benefits to the nation at a reasonable cost. But those remedies will now be applied to the Harvard faculty, and the professors are in an uproar.” [New York Times via Jonathan Adler; Rich Lowry, New York Post (quoting Twitter: “Karma is a pre-existing condition.”; Michael Cannon, Cato (“one of the most wonderful things I have read in the course of my career”)]
- 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]
Another hidden gift inside the Affordable Care Act: mandatory calorie labeling for many restaurant menus. Walter Olson comments on the complications and potential unintended consequences of such a mandate.
My new Cato podcast: the new FDA calorie labeling rules apply to not-so-big chains (20 +) of grocery stores and amusement facilities as well as restaurants, and make it less likely that servers and local managers will manage to vary from rigidly standardized recipes, menu listings and portion sizes based on knowledge of their local customers, temporary availability of attractive ingredients, and so forth. That won’t matter much for food servers who already design their offerings in a lab, but spells trouble for those whose offerings are more localized or unpredictable (earlier). Coverage by Ed Morrissey of what the scheme would mean for a 21-unit pizza chain is linked here.
In January, David Boaz commented on the parallel vending machine calorie label mandate:
In my experience, vending machines shuffle their offerings fairly frequently. If the machine operators have to change the calorie information displayed every time they swap potato chips for corn chips, then $2,200 [per operator per year] seems like a conservative estimate of costs. But then, as Hillary Clinton said when it was suggested that her own health care plan would bankrupt small businesses, “I can’t be responsible for every undercapitalized small business in America.”
More: Baylen Linnekin. And Julie Gunlock recalls her own days working in a supermarket deli. Goodbye, making up prepared salads in single-serving containers from whatever produce happened to be in overstock at the time. Hello, food waste!
[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]
- ObamaCare challenge: D.C. Circuit vacates Halbig decision for en banc rehearing [Roger Pilon, earlier]
- ACLU and SEIU California affiliates oppose trial lawyers’ higher-damages-plus-drug-testing Proposition 46 [No On 46, earlier] As does Sacramento Bee in an editorial;
- Rethinking the use of patient restraints in hospitals [Ravi Parikh, Atlantic; legal fears not mentioned, however]
- Certificate of need regulation: “I didn’t know the state of Illinois had a standard for the maximum permissible size of a hospital room.” [John Cochrane]
- In China, according to a study by Benjamin Liebman of Columbia Law School, hired malpractice mobs “consistently extract more money from hospitals than legal proceedings do” [Christopher Beam, The New Yorker]
- Overview of (private-lawyer-driven) municipal suits on painkiller marketing [John Schwartz, New York Times, earlier] More: Chicago’s contingency deal with Cohen Milstein on opioid lawsuit [LNL] More: Rob Green, Abnormal Use.
- “So In The End, The VA Was Rewarded, Not Punished” [Coyote]
- Texas jury awards $27 million against McDonald’s in negligent security case [Bloomberg]
- NYC cop sues after being acquitted on rape charges, and from the difference in coverage between the NY Daily News and Slate, you might not realize it was the same case;
- “Obamacare was no inartful compromise; it was a brutal cramdown.” [Michael Greve, Law and Liberty, on Halbig]
- American Tort Reform Foundation nominations of “judicial hellholes” this year include Louisiana, South Florida and NYC [Abnormal Use]
- Antitrust’s awful academics [Tom Bowden, Ayn Rand Institute]
- New York Assembly Speaker Silver “earned up to $750,000 in 2013 working a few hours per week” at prominent tort firm [NY Daily News]
- Europe: Gardeners with sit-on lawnmowers face buying motor insurance [Telegraph]
Last week, when two federal circuit courts of appeals came out on the same day with conflicting opinions on whether to enforce the literal language of the Affordable Care Act bestowing tax credits only on users of state-established exchanges, some journalists (at, e.g., Vox) took the line that the omission in the statutory language had been a mere drafting error not reflecting anyone’s intent. In subsequent days it was revealed that 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. Complicating further the question of intent, however, Daniel Fisher at Forbes writes of a Republican Senate staffer who did expect federal exchange enrollees to get tax credits.
Even if we accept the “drafting error” rather than the “pressure the states” explanation of the ACA’s language, it’s worth noting that after major legislation Congress ordinarily comes back to pass a fix-it bill to clean up drafting errors. [More: Tyler Cowen] That’s a lot less likely to happen when the landmark bill is forced through in half-finished form against a unanimous opposition party because going to conference committee would have required negotiating.
I well remember the pride displayed in some quarters about having forced a health care bill through against Republicans’ resistance, even though it was common knowledge that the bill’s details were not in anything like a finished state. I suppose the plan was to rely on a combination of creative executive interpretation and, where needed, judicial mulligans of the sort the Fourth Circuit just agreed to provide.
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.
The Court has ruled that under RFRA, the Religious Freedom Restoration Act, Congress cannot require closely held corporations to provide contraception coverage as part of ObamaCare when there are readily available alternatives to serve the government’s objectives that would not tread on conscience rights. So said a five-Justice majority led by Justice Alito, including a whittle-it-down concurrence by Justice Kennedy emphasizing the narrowness of the ruling. Why narrow?
* “Closely held” is important — private corporations like Hobby Lobby and Conestoga are closer to surrogates for the owning family than are publicly traded corporations.
* The available alternatives are important — in many closely related situations it won’t be as easy to devise a workaround that serves the government’s policy objectives, and in those situations the claims of conscience may lose out.
* And the basis of the decision in RFRA, that is to say, statutory rather than constitutional law, is important. Congress is free to tinker with RFRA, Obamacare law, or both if public opinion is dissatisfied with the outcome. Although objectors may later raise First Amendment arguments, today’s decision in no way decides those issues.
Earlier coverage here. Cato’s brief is here, and Ilya Shapiro is out with a statement for Cato (“Obamacare’s contraceptive mandate had to [fail under RFRA] because it didn’t show – couldn’t show – that there’s no other way of achieving its goal without violating religious beliefs.”)
P.S. My colleague Julian Sanchez argues that the outcry against Hobby Lobby had almost nothing to do with whether any actual female employees will gain or lose access to contraception, and was instead was almost entirely a matter of cultural signal-sending.