CBO scoring and the Halbig case

CBO scored the ACA as offering subsidies in Federal-exchange states. No one doubted it. End of argument.

I’m no expert either on ACA or on the dark art of statutory interpretation, but unless someone tells me otherwise I’m going to regard Dylan Scott’s story as nailing down the factual question about what Congress thought it was doing when it passed the ACA. As Abbe Gluck at Balkinization points out, the two very ideological judges on the DC Circus who voted to wipe out a major piece of legislation based on a drafting error had to find, not only that their twisted interpretation of the statute was plausible, but that the alternative interpretation – the one that made the statute workable rather than completely unworkable – was utterly implausible.

It’s possible that a hyper-partisan Supreme Court majority will choose to pretend to believe this fiction, just as a similar majority pretended to believe that George W. Bush would suffer “irreparable damage” from an honest vote count in Florida. But it is not possible that, in doing so, any of the (in)Justices would be acting in good faith. It would be just one more instance of Weimar Republicanism.

So far, Memorandum isn’t aware of any Red-team blogger or journalist who has responded to, or acknowledged, Scott’s story. I’ll be watching.

Footnote Did anyone point this out in the briefs or oral argument. If not, why not?

Second footnote

The in-your-face, f***-you cynicism of concluding paragraph of the majority opinion is, if possible, even more outrageous than the decision.

We reach this conclusion, frankly, with reluctance. At
least until states that wish to can set up Exchanges, our ruling
will likely have significant consequences both for the millions
of individuals receiving tax credits through federal Exchanges
and for health insurance markets more broadly. But, high as
those stakes are, the principle of legislative supremacy that
guides us is higher still. Within constitutional limits, Congress
is supreme in matters of policy, and the consequence of that
supremacy is that our duty when interpreting a statute is to
ascertain the meaning of the words of the statute duly enacted
through the formal legislative process. This limited role
serves democratic interests by ensuring that policy is made by
elected, politically accountable representatives, not by
appointed, life-tenured judges.

Does anyone really believe that the two Republicans who signed this pap acted with “reluctance”? Or that they didn’t intend to substitute their appointed, life-tenured political preferences for those of the elected, politically accountable representatives who passed the bill?


Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

19 thoughts on “CBO scoring and the Halbig case”

  1. I don't understand why the names of these two corrupt Justices aren't being mentioned. Based on the clearly fraudulent reasoning that lead to their decision in the Halbig case, we can confidently expect that these clowns have abused and distorted the legal process in the past and will continue to do so in the future.This kind of dishonorable behavior and abuse of power doesn't just happen; it was result of the conscious decisions, made by unscrupulous partisans who made the decision to betray their oaths, and we should all know who they are

  2. This is old news. The CBO score was written about years ago, is addressed in my article with Michael Cannon and has been discussed thoroughly. All it shows is that CBO assumed that all fifty states would have their own exchanges, an assumption CBO made for all the various draft bills in 2009 and 2010. CBO further acknowledges it did not conduct its own legal analysis of the bill's language.

    Other than the Gruber comments and Cohn Fresh Air interview, there has been nothing new raised on either side of this debate since the decisions. It's all covered in the briefs, in our initial work, and by some of the more thoughtful commentators on the government's side (e.g. Nicholas Bagley, Sam Bagenstos).


    1. It shows that the CBO assumed all fifty states would have subsidies available. It certainly does not show that they assumed that they would all have their own exchanges. I suppose that's a possible interpretation.

      But the real issue here is – why create a federal exchange at all if the intention was that subsidies should only be available for those states that created their own exchanges? Your argument requires that a federal exchange was created with the intention that it not work.

  3. This was explicitly cited in the District Court decision (https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0623-67)

    "…Congress assumed that tax credits would be available nationwide. See, e.g.,
    Congressional Budget Office, An Analysis of Health Insurance Premiums Under the Patient
    Protection and Affordable Care Act …Letter from Douglas W. Elmendorf, Director, CBO, to
    Rep. Darrell Issa, Chairman, House Committee on Oversight and Government Reform, Defs.’ SJ
    Mot., Ex. 17, at 1 (Dec. 6, 2012) (“To the best of our recollection, the possibility that those
    subsidies would only be available in states that created their own exchanges did not arise during
    the discussions CBO staff had with a wide range of Congressional staff when the legislation was
    being considered.”). …there is no evidence in the legislative
    record that the House, the Senate, any relevant committee of either House, or any legislator ever
    entertained this idea.

    But the appeals decision (http://www.cadc.uscourts.gov/internet/opinions.nsf/10125254d91f8bac85257d1d004e6176/$file/14-5018-1503850.pdf) also addresses it:
    "The government points, for example, to a
    Congressional Budget Office report from November 2009,
    before the ACA’s adoption, that calculated the cost of
    subsidies based on the assumption that they would be
    available in all states. But that assumption is as consistent
    with an expectation that all states would cooperate (i.e.,
    establish their own Exchanges) as with an understanding that
    subsidies would be available on federal Exchanges as well."

    1. So naturally, facing the ambiguity, they picked the counterfactual that destroys the architecture of the law.

      For my money. the killer argument is that nobody in the state legislatures that took the decision to create their own exchanges or not ever it seems considered the theory that subsidies hung on it, as they did on Medicaid expansion post-Sebelius. Can "cooperative federalism" work its magic as the Kafkaesque rules of a hidden city? Do judges not owe some deference to the interpretations of statutes by legislatures, state as well as federal? They don't need to agree that these are correct – but legislative ambiguity is SFIK all that is necessary to trigger deference to the executive's interpretation.

      1. The DC Circuit majority missed the point about the CBO report. The CBO is, after all, the Congressional Budget Office. The report was intended to inform Congress about the effects of the ACA with the expectation that members of Congress would rely upon the analysis when voting on the bill. Thus, the CBO report can be relied upon as evidence of legislative intent.

      2. A) A CBO score has never been found to be a basis for finding legislative ambiguity by a federal court (and with good reason).
        B) The claim about states is not true. See, e.g. Oklahoma which filed suit on this theory before electing not to create an exchange.
        C) Given that the IRS had proposed to offer tax credits in federal exchanges, it's equally plausible that state policymakers simply relied upon the interpretation adopted by the IRS.

        1. I stand corrected on Oklahoma. Anybody else? "E.g".

          The idea behind the Oklahoma suit, at first sight simply a deliberate impoverishment of Oklahoma's middle class with no benefit to anybody else, seems to have been: no exchange, no credits, so no employer or individual mandate. I’m bemused.

          1. Right. As your link shows, the only thing going on here is that opponents of the law have used a similar argument in another instance. No state indicated that it was getting its arm twisted to set up an exchange.

            Dr. Strangelove had the final word on this:

            Of course, the whole point of a Doomsday Machine is lost, if you keep it a secret.

        2. On A: I can't find any reference to the CBO in the legislative history part of the Adler-Cannon amicus brief, so what exactly is your argument against Gluck’s? What she is proposing – proposed two years ago, not as a debating point in Halbig – is

          … a new “CBO canon”: an interpretive presumption that ambiguities in legislation should be construed in the way most consistent with the assumptions underlying the congressional budget score on which the initial legislation was based.

          The importance of the iterated CBO scores is incontestable in the unedited legislative history of ACA (they won’t matter for all legislation).

          The data and analytic agencies on which the democratic process relies are today of constitutional importance. The UK recognized this in 2007 when the UK Statistics Authority, which is responsible inter alia for preparing national income, employment and inflation data which are both market and politically sensitive, was made accountable directly to Parliament and not to a Minister of the Crown. The Chief Statistician is also head of the Government Statistical Service, including many statisticians working in ministerial departments; the double accountability is intended to reinforce their professional independence.

          1. It's discussed in our Health Matrix piece (which predates the amicus brief by two years). http://papers.ssrn.com/sol3/papers.cfm?abstract_i
            It's also discussed in this piece by a critic of our bottom line: http://ziffblog.wordpress.com/2014/08/01/tpms-hal
            It's also undercut by the drafting history. As gov't-side amici acknowledge, PPACA precursors included incentives for state cooperation, yet CBO scored all the bills the same way: with all states cooperating.
            Given that CBO scores are based on the rules Congress gives CBO, and are often gamed in the process, it would be bizarre if CBO scoring could trump legislative text.

  4. What on earth does "Weimar Republicanism" mean in this context? Is this supposed to be self-evident? A google search suggests that Kleiman has never used this term before. I have literally no idea why that would make sense as a term to describe the US Republican Party.

  5. There's an interesting contrast between Halbig and the Supreme Court in the recent climate change case. In the latter case, the conservative opinion said literal application of the Clean Air Act was unworkable, so they read the law as not applying to CO2. In Halbig, the DC Circuit didn't care and applied the law literally. A literal application of the law in the Supreme Court case would have led to a vast expansion of businesses whose CO2 emissions would be regulated.

    Someone with time on their hands might want to look at those two judges and see if they're consistent in how they construe statutes.

    1. That's not quite what they said — and they held the relevant provisions could not be applied to CO2 because the alternative required allowing the agency to interpret clear statutory language to mean something other than the plain and obvious meaning of the words in question. Insofar as we can make such comparisons, Justice Scalia's UARG v. EPA majority is more consistent with the majority in Halbig, and the Breyer dissent is more consistent with the Halbig dissent and 4th circuit concurrence.

  6. There is something here that puzzles me.

    Suppose that no states were unwilling to "establish exchanges." Now suppose a private company developed and offered for sale a software-based "Health Care Exchange System," which, with some customization, could be used by any state to run its exchange. That product might well be bought by many states, on the grounds that it was easier, quicker, and cheaper than a do-it-yourself approach. Would anyone argue that a state that did this had not "established an exchange?" I don't think so.

    Yet the only difference between that and the federally-run exchanges is that the supplier is the federal government, and it charges nothing, as far as I know, for its product. That a state has elected to let the Federal government set up the exchange, rather than ABC, Inc., hardly means it hasn't "established" an exchange.

    1. That's actually a very interesting question. The problem, however, is that the law requires that exchanges be either government or non-profit entities. There might be a way around this — i.e. through a creative contracting out of exchange functions — but the same might be said of Halbig. Some legal commentators have suggested that the federal government might be able to facilitate state "adoption" of the federal exchanges so as to preserve tax credits. If so, and it's otherwise done in compliance with the law, I would have no principled objection.

      1. But the state need not contract out the operation of the exchange, merely its "establishment." Afterwards it can operate the purchased system itself.

        A simple and common analogy would be a company buying say, an accounting software package (or any other piece of software to use in its business). Once the software is installed and operational the buying company's staff, not the contractor, runs it. So the state would still operate the exchange.

Comments are closed.