Wednesday, November 12, 2014

Frivolous Punditry

I'll grant that in whatever narrow field of economics that Krugman earned a Nobel Prize, he knows his stuff. But outside of that I tend to view his opinions as close to nonsense. He has an opinion on the legislative process as it applies to Obamacare.

Krugman says that a Supreme Court ruling that only Obamacare subsidies purchased through state exchanges (rather than the federal exchange) would be a ridiculous reading of the statute that says subsidies are only available through state exchanges.

He leads off with an example of a faulty deed that technically showed a piece of property as a narrow triangle with a base of one foot rather than a rectangle. The local clerk adjusted the language to make sense--which is what the federal government is doing by interpreting "state exchanges" to mean any exchange.

We are a nation of laws--or should be. Statutes should be read as written or we have no rule of law. If words don't matter, why do we write them down and require our people to obey them?

In my experience, statutes have to be interpreted by the courts as written unless it is impossible to do so, at which point then and only then is legislative intent relevant. But that's at the state level, I admit.

If this truly was an error, you could say that perhaps sponsors should have run it through the committee system where normal scrutiny would have allowed for the time to find drafting errors--if it was a drafting error. First the bill was "deemed" passed and now the language itself is to be "deemed" what proponents insist is should be? Where does it stop?

Since the president himself said (repeatedly) that if you like your policy or your doctor you can keep your policy or doctor--period--does that mean that the statutes that don't provide that should have been interpreted to achieve that?

Again, however, the act was passed as it was written. That has to matter. At the state level, that logic certainly applies. I can't begin to recount how many bills were passed that had "technical" amendments to correct errors in statute. Statutes didn't just magically change. Even obvious errors had to be corrected by going through the legislative process.

But the notion Krugman peddles that saying that only "state" exchanges qualify for policy subsidies is like having a narrow triangle-shaped parcel for a house ignores that the latter on its face makes no sense (and if neighboring parcels show rectangles, it is surely safe to imply that the middle parcel fills the gaps between them) because while a house cannot be built on such a wedge, many a federal law is built on the concept of bribing states into doing what the federal government wants.

The latter is standard operating procedure for the federal government that lacks the authority to order states that have their own powers rather than being mere subordinate bodies of the federal government to do many things.

The federal government often dangles money in front of states to get them to voluntarily do what they cannot be ordered to do. My memory of the whole act is that this is exactly what the drafters intended.

States--even those run by Republicans--would not want to deny their voters this money, and so would build their own exchanges to avoid angering voters who would not get the subsidies by using the federal exchange.

Indeed, if the law was intended to apply to any exchange whether state or federal, why would any state go to the effort and expense of building their own exchanges? Why wouldn't they just let the federal government pay for this cost if it didn't matter who ran them when it came to federal policy subsidies?

Of course, I don't know enough about the suit to know if this is enough to invalidate the entire law. It may be the case that striking down this part of the law makes the entire law invalid.

But I concede that on the pressure part, if states want to resist that dangled bribe while other states take the bait, the law can stand with this reading of the law.

Perhaps then those states will feel pressure to make their own exchanges.

But perhaps the states react by financing their own subsidies.

This post goes into some of what flows from the plain reading of the law. But I am outside of my lane by enough to say I understand the repercussions.

I don't know how this plays out or if it even benefits Republicans if the provision is struck down. But rule of law requires the courts to defend the statute as written--whether intended as I suspect or mistaken, which should be a rebuke to the horrible method of passing the bill.

Krugman asserts that party line votes in courts that led to the Supreme Court getting this question imply corruption by the judges rather than having thinking similar to what I post here--which says something bad about Krugman's analytical ability, I think.

He naturally assumes that the conservative judges are corrupt. I think honest people can disagree. But if corruption is the answer, I think you have to ask how Democratic judges can rule in a way that injures rule of law.

Words matter. Statutes matter more. This attack on the law isn't frivolous, as Krugman states.  Indeed, rather than being seen as an "attack" it should be seen as a defense of rule of law. That matters.

It's nice to get the occasional reminder of why I long ago decided Krugman had zero value as a trustworthy pundit. One could say he is frivolous. One could say other things, too.