Afternoon Must-Read: Rob Weiner: Overruled: A (Third) Response To Professor Adler on Halbig

Rob Weiner: Overruled: A (Third) Response To Professor Adler: “In the hopes of capping the increasingly tedious (not to mention snarky) contretemps with Professor Jonathan Adler…

…I think it worth reviewing a few of the instances where his responses to my blog posts on Halbig have ignored, elided, or misconstrued my points…. I observed that a threat… must be communicated and understood…. Among the evidence I cited that Section 36B was not perceived as a threat were the initial characterizations of the disputed language by Adler and others as a ‘glitch’ and the consequences, as ‘perhaps unintended’.  Adler’s response re-imagines the word ‘glitch’…. But in Volokh on September 9, 2011, Adler recounted the theory of some observers that ‘Congress meant to provide tax credits for any exchange-purchased insurance, because Congress wanted lower-income individuals to be able to purchase health insurance (and comply with the mandate)’…. Adler conceded that, ‘it is certainly plausible–perhaps even likely–that many in Congress wanted tax credits for the purchase of health insurance to be broadly available.’ ‘Congress may have wanted to make tax credits more widely available’, Adler also wrote, ‘but that is not what Congress did’. It is highly unlikely that Congress’s intent to coerce states was clear in 2010 when the ACA was enacted, but became retroactively cloudy over the next 18 months….

No legislator offered Professor Adler’s interpretation of the provision in Section 36B during the debates…. Adler responds that no legislator specifically said tax credits were available in states with federally-facilitated exchanges.  And in fact, they did not specifically say that.  Instead, they repeatedly used the word ‘all’ in describing who… would receive assistance…. ‘All’ is a fairly inclusive word. But those statements don’t count, Adler claims, because ‘PPACA supporters believed all fifty states would create their own exchanges, the legislators assumed that every state would establish its own exchange, as many repeatedly said’. Are those ‘many’ the same ones who used the word ‘all’?  And when legislators made statements about the broad availability of tax credits and subsidies, did they say it was because all fifty states would establish exchanges?…

Adler relied extensively on a 1987 opinion by Judge Edwards espousing a very limited compass for en banc review. I pointed out in my last post that this decision, as well as others cited by the Halbig plaintiffs, predated the amendment of Federal Rule of Appellate Procedure 35 highlighting inter-circuit conflict as an express basis for en banc review…. Rather than addressing his and the Halbig plaintiffs’ reliance on precedents superseded (essentially overruled) by changes in the relevant rule, Professor Adler repeatedly returns to the peripheral question whether the DC Circuit regularly issues orders staying its mandate until the time for rehearing expires…. The key point… is that this is not the point. It does not affect at all the conclusion that the Halbig decision was aberrant and that the full Court of Appeals is unlikely to let it linger….

So, let’s return to substance…. None of Adler’s assertions, including his pointless quibble over the definition of ‘definition’, undermine the statutory arguments in my posts or in the judicial opinions rejecting his position. Adler’s theory requires reading the words, ‘established by the State’ in isolation, and saddling them with an interpretation that vitiates other pertinent provisions of the Act, sabotages the Exchanges that Congress took such pains to create, and denies low income families the subsidies needed to meet the objective proclaimed repeatedly in the statutory text, in the legislative debates, and, indeed, in the very name of the Act–extending affordable healthcare to all Americans. 
And that, I hope, is my final word on why I believe the D.C. Circuit will grant en banc review and overturn the panel decision adopting Adler’s theory.