Even Obama can’t violate fundamental laws of politics

There is an ironclad law of redistributive politics at play in the ACA (ObamaCare) fiasco.

This law is that concentrated interests almost always conquer diffuse interests.  Milk producers are a concentrated interest.  Milk consumers are a diffuse interest.  Guess which group is favored by the long history of milk price supports?  Dairy farmers get fat checks.  School teachers and plumbers and accountants pay more for milk.

One corollary to this law is that legislators try to create concentrated benefits and diffuse costs by separating the funding mechanism (taxes on all) from the supply of benefits (a local interest). Perhaps your community benefits from a community center, educational program, or a resurfaced highway.  Those projects almost always fail a simple cost-benefit test because if they made sense for local communities to do, they would just do them.  If they don’t, they seek assistance from their representatives in Congress.

When the costs and benefits of local expenditures are added up nationally, they don’t make sense.  Aggregate costs surpass aggregate benefits.  But because the benefits are concentrated in a local area and the costs are diffuse, legislators logroll (trade votes) and the projects get funded by the federal government. [Earmark reform has curtailed this process in recent years, but I remain highly skeptical that such reforms will be 1) effective and 2) persistent.]

Vulnerable Democrats in Congress are starting to panic because they are seeing the consequences of violating the law of diffuse and concentrated interests.  Those insurance cancellation letters and the higher prices faced by a portion of those shopping on the exchange are a small portion of the population (probably less than one percent), but they are highly concentrated, not to mention vocal.

If you are, for example, a healthy young man running a small start-up business, you are likely to see your rates on the individual market go up considerably, especially if you are successful enough not to qualify for a subsidy.  Under ObamaCare, the transfers from the young to the old increase, as do transfers from men to women and from the healthy to the unhealthy.

We could have a debate on whether those transfers are morally justified or not, but usually politicians are savvy enough not to send voters a bill for the transfers:

You will now pay $4,000 more per year for a policy you like less than your old one so that nice middle-aged lady with knee problems who lives across the Hall in Apartment 5F can get free health insurance. She is very nice, by the way.  She is a librarian and doesn’t make too much.  We are sure you won’t mind.

Even political hacks who aren’t too bright know that you don’t send people individualized bills for benefits going to other people.

Voters don’t like getting bills.  They like to think that other people—rich people who are better off—are paying the bills.  Voters want benefits.  That great line from a LA Times story a couple of weeks ago quotes a young woman who said, “I was all for ObamaCare until I found I was paying for it.”

Smart politicians know this law.  They don’t send bills to voters.  They just send newsletters detailing all the wonderful things they have done for their Districts and how they are trying to fight out of control spending in Washington

When the President brazenly violated the law of diffuse and concentrated interests, he illustrated the hubris so characteristic of everything he does. He thinks the ordinary laws of politics don’t apply to him.  He can strike a handsome pose, give a charismatic speech, and his problems will go away.  Europeans will give him Nobel prizes.  The media will fawn. That is how he has understood the laws of politics up to this point.

He is starting to get a lesson in what the real laws of politics look like.

73 thoughts on “Even Obama can’t violate fundamental laws of politics

  1. Yes. The ACA socializes the cost of health care (including profits for insurers, of course) – it is a new welfare program, not insurance. Socializes is a word the supporters of the Act fear to use for obvious reasons. They would have a simple and charitable-sounding argument for their plan, if they wanted to be honest: No, you, the 50 year old male do not need maternity care, but your neighbor might. And you will help pay for it. Now doesn’t that make you feel better about your rising premiums?

  2. ACA was intended to buy Democratic voters by creating a new class of state dependents (the sick and the recipients of premium subsidies). Such a scheme proved highly successful with SS and Medicare, both of which created loyal Democrats. But this time it didn’t, for the reason you give. It will hurt more people economically than it will help, and a lot of those helped don’t vote. In a political context, it hurts middle-class voters and helps lower class voters; i.e., it helps those who already vote Democrat and hurts independents. It was politically ill-conceived because now it will appear to the middle class voter that his insurance premium is a bill from the Democratic Party to pay for someone else’s subsidy. Why didn’t Pelosi and Reid understand this? Isn’t that what the discipline of “political science” is all about? It’s also interesting that Ted cruz didn’t figure this out either: he was terrified that ACA would be as popular as SS and Medicare. He didn’t run the numbers either. No one did.

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  4. By concentrated interests, I gather you mean that their costs are greater in proportion to their income than others’ benefits. (To use your example, the price of milk is more important proportionally for producers than it is for consumers.) However, that’s probably not true in this case. The 17 million who are eligible for subsidies outnumber those who are receiving rate hikes, AND the benefit to them (proportional to their income) is probably greater. The 17 million figure doesn’t include Medicaid recipients, for whom this effect is greater still. And it doesn’t even take into account the concentrated interests of hospitals, drug manufacturers, and insurers who all benefit from wider coverage. So I have no idea what you’re talking about.

    1. > The 17 million who are eligible for subsidies outnumber those who are receiving rate hikes

      Riiight, 17 million > (Total adult population – 17 million)

      1. Not sure what you don’t understand. Regardless of how nice it is for the other guy, if it hits me it hits me; if it hits enough guys like me, we might not like getting hit as a group. And the guy who gets a subsidy, if it costs him now and it didn’t before, he might object too. Should it turn out that his deductibles prevent him from getting the service for which he and (and I, via “subsidies”) are paying, then he might be a little more upset.

  5. Sven, you’re unintentionally praising the ACA, since you’re assuming that the ACA benefits broad, diffuse interests over narrow concentrated interests, and you seem to think that’s generally a good thing.

    1. I’m generally supportive of some kind of broad safety-net when it comes to healthcare access (though I’d design one that pays more attention to incentives). But the drivers behind the ACA are less about providing a safety net than they are about expanding, yet again, the scope of the state. If “progressives” truly wanted a safety-net they would support, for starters, much more aggressive means-testing in Medicare and Social Security.

      There is much about the ACA I don’t like, but the idea of trying to facilitate an insurance market to augment the broken private market that we have had is basically an admirable idea (one pushed originally by the Heritage Foundation). Even the subsidies aren’t so terrible, though they are probably too large. The big problem in the exchange is that the accompanying regulations force a vast amount of over-insurance, from top to bottom. People who are subsidized don’t mind the over-insurance. But people who have to pay the price for it do.

      Any public policy initiative is bound to have problems if it 1) forces people to buy something they don’t want or 2) prohibits people from buying something that they do want. The ACA insurance regulations push both those trouble points. These rules are particularly true in the America, where we are generally OK with being taxed, but really don’t like being told how to spend the money we are supposed to keep for ourselves.

  6. So, it sounds like Obama’s “hubris” is in doing the right thing even though it is politically damaging. I think the actual word you were looking for was “courage”.

      1. You’re moving the goalposts now. Your criticism isn’t about his “if you like your insurance you can keep it” statements, it was about Obamacare. if you want to criticize him for lying then do so, but that’s not what this post is about. This is about how Obamacare – and Obama – “brazenly violated the law of diffuse and concentrated interests”. Even if I concede that Obama is a liar and a cheat and that he kicks puppies, it doesn’t change the fact that he passed a law that had many political downsides for what appears to be the noble reason that he thought it was the best thing for the country. Isn’t that what we want our politicians to do?

    1. Sven is right. If it were courage, he would have told the truth about the costs. He didn’t. ObamaCare wasn’t named the Affordable for Some While We Stiff the Middle Class Act. He either knew the faults and falsehoods and lied about them, or he was oblivious to those faults. Neither case makes him courageous.

      1. I’m sorry, if I’m going to defend the President I’ll need to know what it was that he said that you think was untrue.

        But, I’ll add that it’s largely irrelevant to the earlier point. Sven has argued that Obama did something that was politically disastrous and that he did it out of hubris. I have countered that if what he did was politically disastrous (yet to be seen) he did it because he thought it was the right thing to do (hubris or not) and that this is usually the kind of courage we often criticize politicians for lacking. Even if he lied about the costs – a point I’ve not conceded – that doesn’t mean that the initial decision lacked courage. Courage is doing what you think is the right thing even though it is wrought with peril. This is exactly what was described here and subsequent lying doesn’t change that.

  7. I don’t see why you’d assume hubris on Obama’s part. Of course he understood this stuff. Why do you think the bit of the process where the letters go out was scheduled not to happen until after he’d been reelected?

  8. This post was about how the ACA is running into some tough political realities. The President is a very smart man who certainly realized that the ACA would impose very significant costs on a small subset of the population—a subset that was mostly not part of “the 1%” who the Obama campaign referred to endlessly.

    One can make the utilitarian point that the gains from the ACA outweigh the losses and that, therefore, it was the correct policy decision (those are both contestable points, by the way). But my central point is that those utilitarian calculations don’t usually apply to politics.

    Perhaps the President thought, “I’ll deceive the voters today and take the heat after my re-election because it is in the best interests of the nation.” If you want to call that courage, I guess you have a different conception of political courage than I do. I think it far more likely that the President just thought that through the force of his intellect and communication skills (and with the usual help of the media), he could bring people around and quiet the storm. I don’t think his hubris is malevolent, but that doesn’t mean it isn’t still hubris.

    The political laws still apply, even to the Chosen One.

    (My guess is that he is also surprised at how much mainstream media coverage this issue is receiving; as much as the media are in his corner–though less so after his administration spied on them–journalists love a little guy gets tromped on by big guy story. And now they have millions of them, which is just too much to pass by.)

    1. Oh, I’m sorry, I thought I was dealing with a rational person who disagreed with me, not someone who derogatorily calls Obama the Chosen One. You don’t like him, which is why you assume the worse explanation for his behavior. That makes sense now.

    2. I don’t think it’s correct that utilitarian calculations about costs and benefits don’t usually apply to politics. People do actually want to get things done, especially presidents who can do it and still get reelected.

      But even if it wasn’t and Obama was just thinking about getting Democrats elected, the political calculation is more nuanced than you’re giving it credit for. This issue hurts the Democrats in this non-election year, but what happens once people get used to the new status quo? The whole thing flips around and turns into a law of politics that will destroy anyone who tries to repeal it. Are the Republicans going to carry on pledging repeal? People who would lose their healthcare will be a highly concentrated constituency that will lynch them if they do. But their base will lynch them if they don’t…

  9. A quibble here: 5% of 300 million is 15 million people. And that’s the lower estimate of who will be worse off. I’m not sure that’s a “small” anything..

    It’s a lot more voters than the number of milk producers…

    1. fitzc, IIUC 5% is the total in the individual market. The number losing their current plan will be a subset of that. And the number whose new coverage is worse for them than their old coverage will be a subset of that subset. So we’re talking about a smaller number than 15 million, but still enough to add up to an important constituency of narked-off voters.

  10. There is one other transfer in this that you – and many others overlook.t

    There is a pretty large difference in health care consumption by race – the actual numbers are in the MEPS database and elsewhere. Asian and Hispanics consume roughly half as much as White-non-Hispanics who consume a bit more than Blacks.

    I suspect if it were not for some our racial taboos we would already be hearing some discussions about the “unfairness” of this.

  11. I would argue they really didn’t understand the political law they were violating. They really aren’t that smart. They ended up in this cul de sac for two reasons- they were trying to finance the ACA without raising income/payroll taxes in a broad fashion in order to not violate Obama’s pledge to not raise taxes on those under $250K income, and the budget rules kept them from explicitly financing it via deficit spending; finally, they really did believe the blather they were spreading about how premiums would fall for almost every body, i.e. they believed in unicorns.

    For the commenters above who think the political law wasn’t violated- just wait until the people buying with subsidies is outnumbered by the previously insured who opt to not buy in 2014 because of the cost escalation.

  12. I think a lot of this is over think. The way Obamcare came to (not sure if it was political or benevolent) was a review of a medical system that is bankrupting this country and individuals. The question then became what to do about this. Remember in the first primary Obama was against the individual mandate (that was Hillary). The only way to be against the individual mandate is to not have thought through the problem.

    Once this was defined as an issue by the democrats (including Obama) the decision had to be made whether to morph the position into a one payer system or try and maintain a semi-free capitalistic system. They chose the second, I’m sure recalling that this was a republican idea from years ago and I’m sure politically seeing this as the middle.

    So when it was asked if Obama ignored the concentrated interest versus diffuse interest, the question must be answered in the context of his first primary against Hillary when he adopted this issue from her. Since he hadn’t thought out the need for the individual mandate when he developed his position, it is clear to me that the question was never asked. After that he was politically trapped by the issue (though personally I doubt he feels or felt trapped). 750 K bankruptcies per year due to medical bills times the number of people who know them and fear the same should at least equal out people who consider themselves worse off with Obamacare (people they know don’t act as an adder because they have personal experience as to whether it is better for them).

    1. Not sure why there was a focus on not-having insurance. The “study” that says 62% of all bankruptcies “are linked to medical bills” also says 75% of those people HAVE medical insurance. I would have preferred effort directed at reducing medical costs and not medical payments.

  13. John D – the “medical system” was doing a pretty good job of meeting the needs of most of us. Yes, a few people were faced with really bad situations – but if you look at the data in the MEPS database – or any other source, you will find that for most people, health care costs are pretty manageable. We have blown up a system that was working for 95%+ of people to fix something that was failing 5% or less. That is the point of the post we are all responding too. Because the 5% were able to scream and shout about their plight and get progressives to do a pretty stupid thing they have put us all on a path that many have described as a “train wreck”. I truly hope that this turns out to be ONLY a train wreck – I fear it will be a lot worse

  14. There is some dispute about that assertion re: medical bankruptcies. Specifically regarding whether some bankruptcies were DUE to medical expenses, or whether medical expenses may have been simply ONE of multiple factors leading one to file bankruptcy.

    As I recall the discussion, if a provider of medical expenses was listed among the bankrupt’s creditors, it was counted as a “medical bankruptcy.”

    However, inasmuch as that assertion, true or not, was a most useful justification of upending an entire industry, the few voices disupting it tended to be ignored.

    http://content.healthaffairs.org/content/25/2/w74.long

  15. The political process of “taking from some and giving to others” is not limited to socialism, though it is crucially tied to that process of socialism’s objectives.

    In Mancur Olson’s dogma, applied to representative government, the objective of specific interests is to concentrate the benefits (that given to others) to a grouping which is significantly to a smaller; and spreading out the burdens of providing what is given (the taking from some) in much smaller amounts over larger numbers of others.

    Any way you look at it, it is still taking from some and giving to others. Which brings into focus the very basic questions in societies which attempt to use a democratic process for representative government: how shall it be determined from whom what shall be taken and to whom what shall be given?

  16. The sad goddam truth is that the full time librarian in Norwalk CT make 72K per year, plus benefits. Two weeks vacation, every Federal Holiday (13 of them) plus vacation.

    The Full Time union librarian is not badly paid. Nor is the teacher. Nor is the fireman or policeman.

  17. “Those insurance cancellation letters and the higher prices faced by a portion of those shopping on the exchange are a small portion of the population (probably less than one percent), but they are highly concentrated, not to mention vocal.”

    Really? Less than one percent?

    And you really think that Democrats are scared of less than 1% of the population? I think that your premise for this article, that this fundamental law of politics has been violated and that there are now severe consequence due, is good. But I also believe that you are vastly underestimating the number of voters who are being impacted negatively. So far, only the individual health insurance policy holders have been affected and, yes, that is a fairly small portion of the voting population. The thing is…there are so many more to add to their ranks in the very near future, before the midterms. These include employees of small businesses who will have to pay more OR whose employers will drop the coverage and throw them into the exchanges. Also included will be union workers with “cadillac” plans who will have to have their plans downgraded or their employers will face stiff fines. There will be a LOT more negatively affected by this law prior to the midterms.

    And all this to benefit relatively few.

    The reason Democrats are terrified is that the calculus doesn’t work. They are alienating (which is a nice way to say, “really pissing off”) a lot of people who generally do vote to benefit a few people who might vote. It is fairly safe to say, though, that in the 2014 midterms, those who have had their policies cancelled, those whose replacement policies are significantly higher in cost WILL vote.

    1. Actually, this will benefit just about everyone.

      1. There are all the people without insurance, who want it and will get it.
      2. There are people who have insurance who will get better insurance
      3. There are people who have insurance who will be protected against losing it due to preexisting conditions.
      4. There are all the taxpayers who will save money because future healthcare costs go down.
      5. There are all the women who will no longer have to pay more for insurance than men do, or who will now get access to birth control.
      6. There are the people who will avoid medical bankruptcies thanks to lifetime limits.

      etc…

  18. I see this 15 million figure bandied about …but the actual number is going to be, hmm, 93 million more in several more months?

    And delaying that until “after the elections” a few days kind of misses the realization that *those* cancellation letters are going to start being sent out in, oh, the last couple of weeks in October or so (regardless of when the mandate kicks in).

    That disturbance in the force is going to be noticeable even to those with somewhat less than Obi-wan levels of discernment.

    The ACA is going to come to be known more as the DPPSA** of 2008. Those chickens are comin’ home to roost.

    **Democrat Party Political Suicide Act

  19. Not just Mancur Olson, by the way. James Buchanan got a Nobel Prize for public choice theory.

    We are only in the first quarter, folks. This is going to get a lot uglier. No one has made a claim yet, some people have probably paid premiums but most of the few hundred thousand enrolled probably have not, and we are going to find on January 1 that a lot of the people who thought they were covered are not. The in-network doctors and hospitals are going to be increasingly difficult to gain treatment from, and shock as to the out-of-pocket cost for use of out-of-network care will be a news item in 2014. There will be personal bankruptcies by owners of ACA-compliant policies with subsidies, because the deductibles and co-pays will be overwhelming — especially for those who used to have employer-provided insurance. This will be a running 2014 news story.

    Regardless of what happens in the trial court, the Administration is ultimately going to lose the Oklahoma case on the subsidies (although, with appeals, that is going to take a couple of years to wend its way through the court system).

    5 million have already lost coverage, and although some of them will sign up for Obamacare, some will not, and it’s entirely possible that we will end 2014 with more uninsured than at the end of 2013. Then the employer policy cancellations, tens of millions of them, kick in.

    When the patient populations are seen to be smaller and more subject to adverse selection than first assumed, at this time next year big time rate increases will be seen in some states, and it’s possible that some insurers will just give up and exit. That will probably take 2-3 years in most cases, but by mid-2015 the “death spiral” will be evident in several states. That should be about the time the Oklahoma case hits the Supreme Court, with a decision in early 2016, and the subsidies will be terminated in the states that don’t have state exchanges.

    I hate to think it, but this is all likely to coincide with a fiscal crisis and economic downturn. Fasten your seat belts – it’s going to be a bumpy ride.

    1. “5 million have already lost coverage”

      No one has lost coverage. They’ve gotten cancellation letters, but in almost all of those cases people are being automatically enrolled in a new, compliant policy. Regardless, no one has lost their coverage.

      As for the Oklahoma case, no one knows what the judge will ultimately rule, but the courts have historically been very lenient in the face of drafting errors like this one. The intent of the law is pretty clear.

      it’s entirely possible that we will end 2014 with more uninsured than at the end of 2013.

      It’s possible, but entirely unlikely. I give it less than 1% chance of happening.

      It’s good that people worry about the issues you’ve brought up, but there is so much built into the machinery to protect against it, that I think the worst case scenario you’ve defined sounds a lot like the worst-case Y2k scenarios we were hearing about in 1999. And I think they’ll look just as silly in 2020 as those concerns do now.

      1. The law is VERY clear. The law was written EXPLICITLY to deny subsidies to any policies not bought through the State exchanges, as an incentive to create those state incentives. But now since their poorly concieved law is a disaster, progressives want us all to believe that what the clearly intended is in fact a drafting error. Liberals can’t promote any of their policies without lying their asses off.

      2. Yes – even Tim Jost – a rabid Obamacare supporter has admitted as much…

        Wanted the strongest possible incentive to force the states to build exchanges – didn’t work out that way thanks to Chief Justice

      3. If it was so clear, then the courts would have already ruled in response to the motion for summary judgement. But it isn’t. The law’s structure and legislative history “amply support the IRS’s position.”

        If more is wanting, consider the CBO evidence. Namely, the CBO estimates and score of the ACA consistently assumed that all qualifying purchasers on the exchanges would receive subsidies to purchase health coverage. So the intent is clear.

        And despite LL’s claim, Tim Jost clearly thinks the current law allows for payments in states without exchanges

        http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2150237

      4. Well, see, that’s part of the problem. Jost seems to say whatever he has to to support his current position, even if he has to flatly contradict…er, himself.

        http://www.forbes.com/sites/michaelcannon/2013/10/30/an-update-on-halbig-and-other-lawsuits-that-could-make-the-decrepit-healthcare-gov-look-like-a-hiccup/2/

        So you, like Jost, want to pretend what he said in September, 2011 never happened, and therefore can’t undercut what he said in July 2012.

        And that just questions his shaky credibility, not his shaky reasoning:
        “•McElvain advanced a new argument designed to get around that tiny problem. When Section 1311 of the PPACA says each state “shall” create an Exchange, he argued, Congress is creating a “legal fiction” that each state has established an Exchange. If a state does not establish an Exchange, “the premise stands” that it has. Therefore, when the federal government establishes an Exchange, it is, fictionally but legally, “an Exchange established by the State.” There are at least two problems with this new theory. First, a legal fiction is when Congress asks the executive and the courts to treat a fiction as though it were true. For example, Section 1304(d) provides, “In this title, the term ‘State’ means each of the 50 States and the District of Columbia.” Likewise, Section 1323(a) provides, “A territory that elects…to establish an Exchange…shall be treated as a State[.]” The District of Columbia and U.S. territories are not states, but Congress directs the executive to pretend they are. For a legal fiction to exist, however, Congress must specify exactly what untrue thing it is asking the executive to believe. The executive can’t just go around believing whatever untrue things it wants. There is no language in the PPACA creating a legal fiction that the federal government is a state. Sections 1304 and 1323 show that Congress knew how to create such a fiction if that was its intent. Second, this legal-fiction theory contradicts another of the government’s arguments. McElvain, like other defenders of the IRS, argued that when Congress explicitly required both Section 1311 and Section 1321 Exchanges to report information relevant to tax-credit eligibility, it was signaling its intent to authorize tax credits through both types of Exchange. Setting aside the problems with that claim, the fact that Congress mentioned Section 1321 Exchanges separately in this information-reporting requirement undercuts the government’s legal-fiction theory, and any theory that claims Congress intended for state-established and federal Exchanges to be fully equivalent. If it was Congress’ intent that state-established and federal Exchanges would be fully equivalent, why did Congress mention the two types of Exchanges separately here? The fact that Congress did mention them separately supports the plaintiffs’ argument that Congress did not intend for them to be fully equivalent.”

      5. No surprise, Forbes has taken many of Jost’s comments out of context. And then you proceeded to misunderstand them.

        In 2012, Jost never actually contradicted himself. He said this was a drafting error, but that he agrees that the court is unlikely to see it that way. Those two statements are not contradictory. In fact he put both of those statements in the article that the second quote comes from.

        http://healthaffairs.org/blog/2012/07/18/tax-credits-in-federally-facilitated-exchanges-are-consistent-with-the-affordable-care-acts-language-and-history/

        So, I’m not pretending they never happened. He said it was a drafting error. It was. The court may not see it that way.

        All of which is irrelevant since the claim was that Jost said that the law was intentionally written this way to incentivize states to set up exchanges. Which is something he has never ever claimed.

        [Many of the other Forbes quotes are deceptive as well. In the first one they moved the words “clearly say” from several paragraphs down and place it in front of the second quote to make a new quote while ignoring the rest of the quote which is that we have “a statute whose words clearly say what Congress clearly did not mean.” That second part is relevant.]

      6. “In 2012, Jost never actually contradicted himself. He said this was a drafting error, but that he agrees that the court is unlikely to see it that way.”

        So he gave his opinion, and then conceeded it was likely wrong? Good to know.

      7. No he stated his opinion and then that the court’s opinion would likely differ.

        Courts are limited in what they can decide. I recall a case where a man in Louisiana was found guilty of murder even though the judge agreed that it was likely self-defense, but the law was clear about what was needed for a self-defense fining and one key element was missing [I think the victim was shot in the street and not on the defendant’s property or some other such technicality].

        Regardless, it means that Forbes’ assessment – and yours – is wrong. And so, at best, both you and he are wrong. If that counts as winning for you…

      8. He was. It’s easy to go bankrupt betting on court decisions. Just ask all the very smart lawyers and AGs who thought the Supreme Court would overturn the individual mandate.

      9. Also, in to try to represent both his quotes as true, you’d have to read them as claiming the courts can’t understand the ACA… for the “drafting error is obvious to anyone who understands the ACA.” If the error is so obvious, why else would the court be unlikely to agree?

  20. Because a drafting error and “scrivener’s error” are two different things. A drafting error means that someone failed to change the language when they should have. A scrivener’s error is a purely clerical error that could be attributed to an error of writing like a failed transcription.

    To be clear, Adler also thinks it’s a drafting error that the court is unlikely to attribute to a scrivener’s error.

    1. How can you reconcile your claim that Adler thinks this is a “drafting error” while he still claims that Congress intended the exact meaning of the sections in question?

      1. I don’t have to. That isn’t Adler’s claim. His claim is that it doesn’t matter.

        “Federal agencies lack the authority to unilaterally revise statutory mistakes. Congress may have wanted to make tax credits more widely available — just as it may have wanted those making less than poverty-level income to be eligible for exchanges as well — but that is not what Congress did.”

      2. So your proof that Adler thinks that this is a drafting error is his assertion that EVEN IF he to agreed that it was, it still wouldn’t matter? Weak tea, especially from one attempting to “be clear.”

      3. No, that’s my proof that it isn’t his claim that Congress intended the exact meaning of the sections in question. He never makes that claim.

      4. I think you need to look up the definition of the word “proof.”

        Don’t be rude. If you have a point to make, then make it, but let’s leave the insults on the playground Bob. I don’t wish to waste my time with the childish.

        My evidence that he thought this was a drafting error was this from 2011

        “As David Hogberg reports, this has led some to believe the limitation of tax credits to state-based exchanges is a mistake. Under this theory, 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). This may be true.”

        In retrospect, he though this MAY be a drafting error. And clearly by 2012 he had changed his opinion. So I stand corrected.

        So if you needed to score a point, then – after dozens of comments – you have scored the most trivial of points on the inconsequential of facts.

        Meanwhile I’ve knocked down every substantive argument you’ve hoisted such that you’ve rapidly abandoned it.

        I guess you should count that as a win. Just as you’ll count a court decision that would deny subsidies to millions of Americans in need of help paying for their health insurance a win. Victory!

    2. Beyond that, Jost used the term scriveners error in his 2011 paper, so he was very clearly using the same meaning in both of his competing statements.

      “Is there a way out of this quandary? One possibility is to simply recognize that this is a drafting error. The Supreme Court has occasionally recognized that it is appropriate to exercise common sense in recognizing that “a busy Congress is fully capable of enacting a scrivener’s error into law.” Koons Buick, Pontiac, GMC, Inc. v. Nigh, 543 U.S. 50, 65 (2004) (Stevens concurring).”

      http://www.healthreformwatch.com/tag/drafting-error/

      1. He’s not equating the two. He’s merely showing an example of when the courts have exercised common sense to ignore the letter of the law in favor of the intent. He also cites the Chevron rule as another example.

        Besides this is an awful lot of gymnastics that is totally irrelevant to the larger point. Jost never claimed that the law was designed to deny subsidies to those using the federal exchange. Even if he did it would prove nothing, since what he thinks clearly is not the law of the land. So, you’re basically trying to prove that a supporter of the law who almost no one has heard of once claimed that his opinion and that of the court’s were likely to differ. Who the hell cares? What does that have to do with the price of tea in China?

        If I just say that Jost is a careless writer, can we move on?

      2. Well it is going to be interesting to see how the admin argues for “intent” – hell Pelosi is on record as saying the law had to be passed so we would know what was in it. Jost is not quite as inconsequential as you seem to feel – do a bit of googling and you may learn a thing or two.

        An this issue is not whether Jost is a “careless writer” but can the Court assume that the law was carelessly written on this matter.

      3. Jost is inconsequential as far as the courts will be concerned on this law. If the biggest problem you have with the law is that he said this part was a drafting error and then later said that the court’s would probably not find it to be scrivener’s error, that is certainly not much to complain about.

        You’re right about what the issue is. And there enough evidence for it to go either way. But Jost’s writings shouldn’t give you any reason to be hopeful that people in Texas and West Virginia will find themselves without subsidies. I’m not really sure how that’s a win for opponents of the law – it might do what they claim it was intended to do, push more states to create their own exchanges.

        As for Pelosi’s comment, you’ll need more than that to show that the intent was to force state’s to set up exchanges.

      4. I don’t think the intent was to “force” states to set up exchanges. I think that Obama and his followers never thought that SCOTUS would open the door to the States opting out. They thought the States would blindly go along with this trainwreck – that they would be without the alternative that the Court gave them.

        The Hubris of this President and his regime is such that instead of saying “boy this is a problem and we need to sit down with the Republicans and work out a solution” the decided to just ignore the language – do an administrative fix and defy the Courts to stop them.

        What a lot of Progressives don’t seem to want to recognize is that since Roberts saw his way clear to offer a creative solution that would keep the law intact, the President has done a number of these “fixes” – all of which are legally questionable – Roberts will have a “second bite at the apple” and he might see some of the actions as overreaching and take a harder line this time.

      5. SCOTUS allowed states to opt-out of the medicaid expansion. Opting out of the exchanges was always an option and the drafters must have considered it possible and likely that some states would opt out or they wouldn’t have included the federal exchange contingency.

        The Hubris of this President and his regime is such that instead of saying “boy this is a problem and we need to sit down with the Republicans and work out a solution”

        I don’t think that’s hubris. I think that’s pragmatism. There is nothing in Republican words or actions that would make anyone believe that working out a solution is something Republicans are interested in. Is that what you believe?

      6. “Jost never claimed that the law was designed to deny subsidies to those using the federal exchange.”

        Sure, it’s just a complete coincidence Jost proposed this EXACT mechanism and that the law as written uses that EXACT machanism to compel the states. Well, except now it doesn’t, because the law as written is a complete failure and actually following the law in this instance would certainly doom the ACA. So, convieniently, the actual arguments made and the actual words used don’t matter. The administration needs this section to not say what it clearly says, so the administration and it’s sycophants say it… just doesn’t. Because.

        “That is, Congress cannot require the states to participate in a federal insurance exchange program by simple fiat. This limitation, however, would not necessarily block Congress from establishing insurance exchanges. Congress could invite state participation in a federal program, and provide a federal fallback program to administer exchanges in states that refused to establish complying exchanges.22 Alternatively it could exercise its Constitutional
        authority to spend money for the public welfare (the “spending power”), either by offering tax subsidies for insurance only in states that complied with federal requirements (as it has done with respect to tax subsidies for health savings accounts) or by offering explicit payments to states that establish exchanges conforming to federal requirements.23”

        http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1022&context=ois_papers

      7. He’s saying subsidies for insurance that complies with federal requirements or payments to states (not individuals or insurance companies) for establishing exchanges. Both of those things are currently the law. Only compliant insurance gets subsidized and states that wanted to set up exchanges got money to do so.

        What he doesn’t say is that we should only give subsidies to people in states that set up exchanges. And even if he had – which he did not – it wouldn’t matter since this was before the law was even written and it wouldn’t prove that he claimed that the law was designed to deny subsidies to those using the federal exchange.

        But the following statement is provably false:

        If Jost is a liar, then Obamacare will be undone by the courts.

        if I just agree that his pants are totally on fire can we drop this subject? [his pants are not on fire I will note]

      8. I don’t think he’s a careless writer, I think he lies to the point of flatly contradicting himself when it suits his purposes.

      9. Jost is very consequential to this discussion. Once he was brought up David twisted himself into various shapes to defend jost, like Jost himself twisted himself into various shapes to try and defend a failed law. Which is how Jost flatly contradicting himself became “drafting error” vs “scriveners error” whcih itself became Jost being a “careless writer.”

      10. Jost is very consequential to this discussion.

        Really? how so? He was mentioned as evidence of a rabid Obamacare supporter who has “admitted” that the law was written EXPLICITLY to deny subsidies to any policies not bought through the State exchanges. He has never admitted that. All the other back and forth is pointless. Who cares that he lies or contradicts himself? That only makes the initial claim less important.

        But even if Jost admitted to what he did not, who cares? He’s just some academic. He’s not in the administration. He’s not in Congress. It would matter very little if he had admitted this. But he didn’t, so it matters even less.

      11. As I clearly wrote in my other comment, he’s consequential due to the way you proceeded to lie your ass off, changing your story as your arguments fell apart, once he was brought up.

      12. You give me too much credit. What Jost has written and whether or not he contradicts himself is irrelevant and nothing I can do can change that. It may matter to you if some Obama supporting academic is wrong, but it doesn’t matter to me. And it doesn’t matter to the courts. And it doesn’t matter to the voters. And it doesn’t matter to Congress. And it doesn’t matter to the administration.

        It’s sad (or telling) that you – a typical ignorant right-winger – has to dig this deep to find some flaw that you can latch onto to justify your hatred of the law. If Jost is a Nazi it doesn’t change anything about this law. As it turns out, he didn’t contradict himself. He’s not lying and I’ve not lied either. If you have proof of my lying then offer that up, but if you don’t, then I await your apology. [Adults apologize when they falsely accuse others.]

    3. Once again, conceeding there was a slight chance it was an error is in no way proof he thought it actually was.

      You talk of scoring points and knocking down arguments, but you’re the one constantly shifting your positions and having to conceed points. You talk about being rude after calling the author irrational. You are, in my experience, a typical ignorant leftist: you project all your shortcomings onto those you argue with, then berate them because of it.

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