I forgot to add this one the last time I updated here – I didn’t get around to writing up a full analysis of the King v Burwell decision and its many glaring flaws, but I did put together a Storify essay from my Tweets.
2018 UPDATE: Storify is going out of business, so I’m reprinting this below the fold.
If a court won't throw out an IRS rule that says it applies "regardless" of the text of the law, you have to wonder why we have courts.
— Dan McLaughlin (@baseballcrank) June 25, 2015
IRS' use of "regardless" in the rule was a huge neon sign of ignoring the statute. No way that should stand. pic.twitter.com/bROzl9Z6hS
— Dan McLaughlin (@baseballcrank) June 25, 2015
At least 4th Cir said IRS could ignore the statute b/c language was a mess. But SCT explicitly said it wasn't IRS' decision.
— Dan McLaughlin (@baseballcrank) June 25, 2015
And of course, if you recall, IRS wasn't sure it had authority to write this rule & HHS response was basically ¯\_(ツ)_/¯
— Dan McLaughlin (@baseballcrank) June 25, 2015
Anyone defending the King decision should read the 'legislative history' of the IRS rule https://t.co/NKE3cVoPUn
— Dan McLaughlin (@baseballcrank) June 25, 2015
Here's what the agencies actually did to come up with the IRS rule pic.twitter.com/uCHujIV0Ri
— Dan McLaughlin (@baseballcrank) June 25, 2015
1) I didn't much care about the King/Halbig cases until I looked into the legal arguments.
— Dan McLaughlin (@baseballcrank) June 25, 2015
2) It was obvious the King arguments were legally strong if the case had been less politically controversial.
— Dan McLaughlin (@baseballcrank) June 25, 2015
3) This was based on lots & lots & lots of extremely well-settled rules about how lawyers & courts ordinarily read statutes.
— Dan McLaughlin (@baseballcrank) June 25, 2015
4) I never discounted a political result, but I guess as a lawyer I had some lingering idealism that courts would do law in a case like this
— Dan McLaughlin (@baseballcrank) June 25, 2015
5) What is so depressing is seeing such clear evidence that the things we lawyers do every day go out the window due to politics.
— Dan McLaughlin (@baseballcrank) June 25, 2015
6) Most likely, the old statutory construction rules will still apply in any normal case. Courts will strain to distinguish King.
— Dan McLaughlin (@baseballcrank) June 25, 2015
7) We've seen this with abortion-related cases – Court applies different sets of rules, nobody treats those as precedent outside abortion.
— Dan McLaughlin (@baseballcrank) June 25, 2015
8) I know non-lawyers will never believe me, but: this is not what courts do. This is not normal.
— Dan McLaughlin (@baseballcrank) June 25, 2015
9) And yes, that makes me sad for my profession. It's a reminder that power trumps law, that our profession doesn't believe its own ideals.
— Dan McLaughlin (@baseballcrank) June 25, 2015
10) Nobody cheering today's decision respects the things CJ Roberts wants the Court to stand for. This sort of thing just drains credibility
— Dan McLaughlin (@baseballcrank) June 25, 2015
11) I'd like to believe that knowing the law is an advantage on knowing nothing about law, but days like today make you doubt that.
— Dan McLaughlin (@baseballcrank) June 25, 2015
The reason I'm disappointed is precisely because I evaluated the arguments from the perspective of how statutes are read.
— Dan McLaughlin (@baseballcrank) June 25, 2015
If I knew nothing about how law works, I'd have just been like "well, we lost the last case, of course we were gonna lose again."
— Dan McLaughlin (@baseballcrank) June 25, 2015
It really is amazing how few of Scalia's statutory points the Chief even tries to respond to.
— Dan McLaughlin (@baseballcrank) June 25, 2015
Key point Scalia makes that Roberts never answers is that majority's reading makes most of the words of the key phrase meaningless.
— Dan McLaughlin (@baseballcrank) June 25, 2015
It's been the law basically forever that you don't just read words out of a statute. Potentially colossal sea change if that's no longer so.
— Dan McLaughlin (@baseballcrank) June 25, 2015
That didn't even stay the law long enough for anyone to read the FHA opinion. https://t.co/FZEFlpe1y2
— Dan McLaughlin (@baseballcrank) June 25, 2015
Chief Justice Roberts asks, with frustration, why he keeps having to bail out this sort of incompetence pic.twitter.com/jost3pAZqb
— Dan McLaughlin (@baseballcrank) June 25, 2015
Roberts' point about the ineptitude of the Pelosi-Reid Congress is why the voters had to put the adults back in charge.
— Dan McLaughlin (@baseballcrank) June 25, 2015
Yeah, basically "we won't read this the way we read statutes written by competent legislators." https://t.co/xGvJxxlZNR
— Dan McLaughlin (@baseballcrank) June 25, 2015
I'd have more respect for the idea of valuing judicial modesty over written law if it this was consistent across other areas.
— Dan McLaughlin (@baseballcrank) June 25, 2015
Every good lawyer has had the experience of knowing you had the stronger argument on the law & losing anyway.
— Dan McLaughlin (@baseballcrank) June 25, 2015
No one court decision can destroy the rule of law. But consequences of its gradual degradation can indeed be grave.
— Dan McLaughlin (@baseballcrank) June 25, 2015
It can seem alarmist to suggest big consequences from small steps. But every long journey consists of one small step after another.
— Dan McLaughlin (@baseballcrank) June 25, 2015
An individual citizen, making the same arguments the government made in King, would have lost.
— Dan McLaughlin (@baseballcrank) June 25, 2015