I always enjoy reading Ross Douthat, and indeed find him the best (but still not good enough) reason to subscribe to the digital version of the New York Times. However, I think his most recent column, “The Dilemmas of King v. Burwell,” is deeply disappointing.
First, but least important, he begins a series of numbered points by noting that “[h]aving gone back and forth over the evidence presented, I’m not convinced by the plaintiffs’ argument that the people responsible for drafting for Obamacare consciously intended to limit subsidies in order to induce states to set up their own exchanges.”
So, I’m tempted to (and in fact will) ask, what? It’s not even clear who “the people responsible for drafting Obamacare” are, but whoever they are their intentions are no more important or controlling than the intentions of all those other Democrats who voted for it. And the intention of all of them together on this point, even assuming such an intention ever existed, is much less important — indeed, can only be reasonably determined — by the words of the the legislation they wrote. As Oliver Wendell Holmes said in an astute and widely quoted observation, “”[w]e do not inquire what the legislature meant; we ask only what the statute means.” (“The Theory of Legal Interpretation,” Harvard Law Review 417 [1899])
Actually, Douthat agrees that the drafters’ (and presumably others’) “intention” is not that important, for in his second point he concludes that legislative errors (if error it was, I would add) should be corrected by the legislature.
On a plain-meaning-of-words reading of the law, it only seems to authorize federal subsidies for state exchanges, and so the constitutionally-appropriate way to make those subsidies available on the federal exchange is for Congress to correct the accident and authorize that spending in the actual legislative text. Here I agree with Sean Trende, who writes that “if this were some obscure statute — say, the Uranium Mill Tailings Radiation Control Act … the plaintiffs could be reasonably confident of victory.” And if this were a debate about, say, military procurement or corporate welfare, I strongly suspect that most liberals would not only concede the plaintiffs’ point but trumpet it.
“But,” his third point begins (and this is where Douthat’s thinking becomes unconventionally [for him] conventional and, I think unwittingly partisan), this legislation is too important to be left to “this Congress,” in Solicitor General’s Verrilli’s unfortunate partisan slur during oral augment. “[T]his Congress,” he writes,
(yes, particularly the House) may not be capable of negotiating any kind of health care compromise with the White House in the next two years. In a different world, you could have imagined a pre-ruling deal between Obama and the G.O.P. in which the legislation got tweaked in exchange for some concession — the much-desired death of the employer mandate, some exchange deregulation, etc. But not in ours. And post-ruling, well, I believe that the G.O.P.leadership has alternatives they would like to pursue, several of which I might support. But a reasonable person can still doubt whether any of their plans can pass the House of Representatives while remaining acceptable enough as compromises to avoid a filibuster or a veto — if they can pass the House at all! Hopefully the potentially-awful politics of letting the problem fester would suffice to motivate Republicans to get serious about health policy, or at least to act to keep the subsidies available while they try harder to get serious. I’m sure, though, that the Congress is filled with lawmakers who would rather not put that possibility to the test.
Douthat never explains — just as others who routinely blame the Republican Congress — “(yes, particularly the House)” never explain — why the failure to compromise is primarily or even solely the fault of the Republicans. The House, after all, has passed legislation, which the Democratic Senate refused to pass or often even to consider and the president promised to veto if necessary. Why, then, isn’t the failure to reach accommodation a joint failure rather one of “this Congress”? Why do the Republicans have a greater responsibility for passing plans that are acceptable to Democrats in the Senate and to the president than the Senate Democrats and president have to reach accommodation with the House? Does it not take two sides to compromise? Indeed, if the president and Democrats in Congress had been willing to compromise at all in the passage of Obamacare there might never have been a King v. Burwell case. As Douthat himself notes, “[t]he textual problem with the law exists in the first place because the Obama White House didn’t want to scale back its policy ambitions after Scott Brown’s shocking victory, and pushed a creative end-around that avoided the necessity of more congressional votes but also precluded some necessary edits.”
Douthat digs his analytical hole even deeper in his fourth point, expanding on his view of Congress’s “abdication.” Although he dislikes what he has referred to as Obama’s “Caesarism,” he can’t leave it there “because again, the administration really is dealing with an extraordinary level of congressional dysfunction, which makes the practical, ends-based, this-is-necessary case for the administrative fix much stronger than it otherwise would be.”
But also again, he fails to explain why he believes “Congressional dysfunction” is any greater than presidential dysfunction, thus justifies — or at least makes a strong case — for the Caesarism he claims to so dislike. Why, that is, does he in effect regard the presidential reluctance to compromise as given but the Congressional reluctance as contingent, and hence responsible for the ensuing mess?
Douthat’s approach here, disappointingly, accepts the conventional wisdom of laying all the blame on Republicans for the equal reluctance of both parties to compromise. This line of analysis embodies the same conventional wisdom that routinely blames Republicans for every failure to compromise. Example: if, as recently appeared to be the case for a while, the Republicans were willing to fund the Department of Homeland Security except for funds required to implement Obama’s “executive action” on immigration and the president was unwilling to sign any bill without those funds, why would it have been — as nearly everyone, including most Republicans, agreed — have been the Republicans’ fault if DHS had not been funded?
As I have discussed many times, this conventional wisdom also embodies the same flaw in understanding the problem of causation that led a generation of historians to blame abolitionists for causing the Civil War. See, for example, Causation Confusion; Again, Why Blame Republicans?; “Simple” Partisan Bias At The Washington Post; The New York Times, Obamacare, And The Problem Of Causation; The Causes Of Our Partisan Civil War; and The Causes Of Our Partisan Civil War.
