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from Petterico’s Pontifications, King v. Burwell: Intentionalism Trumps Textualism, and the Rule of Law Dies:


This reminds me of a hypothetical I offered in 2010:

Assume you make $50,000 a year. The legislature passes a law imposing a hefty tax on “people making over $100,000 per year.” Since the law does not apply to you, by its plain terms, you do not pay the tax. However, you are convicted after a judge finds irrefutable contemporaneous evidence showing that all legislators who voted for the tax intended to impose it on people making over $10,000 a year. The judge, an “intentionalist,” finds that the intent of the legislature controls, regardless of the plain meaning of the law.

Under the plain language of the law, the tax does not apply to you. Applying the intent of the legislators, it does. Which is the better interpretation?

My view was that the law would not apply to you, because “$100,000″ means “$100,000.” Legislators can say all day long that they meant to say $10,000 — but if they didn’t include that extra zero in the law that was duly passed and signed, the text simply means what it means.

To me, $100,000 means $100,000 — not $10,000. To me, this is as simple as saying “established by the state” means “established by the state” and not “established by the state or the Secretary of Health and Human Services.” You don’t need to get into the legislators’ heads — and it is foolish and indeed dangerous to even try to do so.

But then, I am not an elite lawyer who went to Harvard or Yale and then went on to serve on the Supreme Court of the United States. And I am certainly not an “intentionalist.” I do not ascribe to statutory language mysterious secret meanings that signify the opposite of the common understanding of the public.


When talking about high court decisions there is much more to be concerned with than the outcome, or its desirability.  That too easily becomes a mere partisan fight.

One’s ire should not be raised at the decision to uphold a shitty law.  That anger is best reserved for Congress and one should vote accordingly.  It can be changed the same way it was enacted.

A legitimate case can be made to the degree that their tortured rationale intrudes into the legislative function,  Its implication goes far beyond the issue at hand in King vs Burwell.

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Prices are Not Arbitrary

from Bernie Sanders’s Dark Age Economics by Kevin Williamson in The National Review


Right now, we are embroiled in a deeply, deeply stupid debate over whether to raise the statutory minimum wage to $15 an hour. (I write “statutory minimum wage” because the real minimum wage is always and everywhere $0.00 an hour, as any unemployed person can confirm for you.) Because everything in the economy is in reality priced relative to everything else, using the machinery of government to monkey around with the number of little green pieces of paper that attaches to an hour’s labor manning the register at 7-Eleven or taking orders at Burger King is, necessarily, an exercise in futility. The underlying hierarchy of values — the relative weighting between six months’ work washing dishes and six months’ tuition at the University of Texas — is not going to change. Prices in markets are not arbitrary — they are reflections of how real people actually value certain goods and services in the real world. Arbitrarily changing the dollar numbers attached to those preferences does not change the underlying reality any more than trimming Cleveland off a map of the United States actually makes Cleveland disappear.

Read more at:

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Judicial Nihilsim

From Rand Simberg at PJ Media, How Republics Die:

As I noted on Twitter yesterday, it is entirely possible to like the outcome of a court ruling (or legislation) while being appalled at the process by which it was achieved. For instance, one can be both pro-choice and still believe (as in fact Ruth Bader Ginsburg does) that Roe v. Wade was wrongly decided.

But too many people (including, apparently and sadly, many of the justices themselves, perhaps even including the chief justice) think that the purpose of the Supreme Court is to give them things they like, like subsidies for health care, or the right to marry someone of the same sex. They care only about the results, and are utterly indifferent to the process (as we saw with the way the PPACA was passed). They believe that the ends, if sufficiently desirable, always justify the means.

But the means matter.

If, as Chief Justice Roberts implied yesterday, ambiguous laws can  be changed by judges per their divination of legislative intent, then there is no law except what the judges think it is. (I would note that in fact his reasoning was fundamentally flawed by his statement that it was Congress’s goal to simply “improve insurance markets.” I think their intent was to increase their control over our health providers, and ultimately lead us down a path to single payer. But neither of us knows.) This was not judicial activism — it was judicial nihilism.


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Legislative Moral Hazard

Without debating the substance of the ACA or the arguments used in the King vs Burwell ruling, the Supreme Court functions within a gray area.  On one hand it should not be their purpose to correct or reject bad legislation, not should it be their goal to interpret so widely that they in effect create legislation.

The ACA, Obamacare, was hastily and sloppily constructed to push the legislation through during the window when the Democrats controlled both Houses, and their advantage was slipping away when Republican Scott Brown replaced the deceased Ted Kennedy in the Senate. The fact that they did not get a single GOP vote said as much about the way is was passed as it did about the substance of the bill.

Too often legislation rushes past the deliberative and thought process to pass general ideas, often poorly reasoned, to be finished by a bureaucracy that is absent from the discussion.  Serious questions are kicked down the line to be reasoned later by the administrative bureaucracy. To the extent that we now risk a Supreme Court to interpret or correct sloppy legislation we simply encourage more sloppy legislation.

There is no reason we should not expect better from our legislators.  Such partisan sloppiness on such a significant bill should be unacceptable.  While opponents may be angered by the Supreme Court’s decisions their anger should be directed at the Congress who passed this monstrosity.

Don Boudreaux similarly stated in his excellent blog, Cafe Hayek, An Advantage No More of Legislation:

One of the benefits that legislation is said to enjoy over evolved, unwritten common law is that legislation’s meaning is allegedly more clear and more concrete and, hence, more objective and more certain.  This advantage for legislation is said to spring from legislation being carefully and precisely articulated and written down.  The written text of each proposed bill is pondered, debated, and polished before it is enacted, and that which is enacted is written down explicitly and with precision in words that can be read and understood by all (or at least by each affected party’s agent-lawyer).

If and to the extend that such explicit articulation and writing of legislation was ever really an advantage over evolved common law, the U.S. Supreme Court’s majority ruling in King v. Burwell has done much to strip legislation of this advantage.


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Nobel Peace Prize Nominees in Charleston


From Peggy Noonan at the Wall Street Journal, Two Miracles in Charleston:

That was the first miracle, the amazing grace that pierced the hearers’ hearts—in America, in 2015, at an alleged murderer’s bail hearing in a plain, homely courtroom. Christian churches and their believers are used to being patronized or mocked as silly, ignorant or hypocritical. They often don’t mind, often laugh along with the joke. But these were public statements that laid out the essence of Christianity, unedited and undiluted, and you couldn’t laugh or scoff. You could only feel awe and ask yourself: “If I were that person in those circumstances, would I be great too?”

Within days, something else wholly unexpected happened. A tough old knot became untied. Something people had been fighting about for a long time was suddenly about to be resolved. The murders at the church, and what was said by the relatives of the dead, prompted the rejection of the Confederate battle flag in gentle, kindly, heartfelt words.

The Nobel Peace Prize committee, if they know it, have some new nominees: the relatives of the dead who offered the mercy that relaxed the hands of those who’d been holding, too tight, to a flag.

Everyone thinks progress depends on indignation, accusation, aggression, demonstration, marching. But we just saw anger lose to love. It’s a huge moment.