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Unhinged Statutory Interpretation among the Netroots

By Jonathan Keim | July 24th, 2014

After the D.C. Circuit released its opinion in Halbig v. Burwell striking down the IRS rule that grants tax subsidies to exchange plans purchased in states without state-run exchanges, the liberal blogosphere lit up with outrage. The New Republic’s Brian Beutler accused Judge Griffith’s majority opinion of taking the phrase “established by the State” out of context, accusing him of ignoring the whole-act canon that, Beutler contends, makes the statute’s meaning unambiguous in favor of the government.

But here’s how he explains this principle:

Insurance subsidies are valid in every state, regardless of which entity set up a particular state’s exchange. Sloppiness aside, there’s no ambiguity about the law’s “overall statutory scheme.” Other parts of the law make clear that its drafters contemplated subsidies in every state. This lower court judge agrees.

This isn’t even an argument, much less statutory interpretation. It assumes the conclusion and makes an appeal to (now overruled) authority. Maybe he’ll elaborate later:
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