Statutes are written by actual people who exist
July 23, 2014, 11:05 am
Filed under: Uncategorized

The statute that became ‘Obamacare’ was not generated by robots or ominously-self-aware AI. It was created by humans.

I don’t know much about the process but I have to assume these humans were people who worked in various Senators’ offices. 26 year olds named Amy with law degrees and the like. (Look, in my mind, she’s named Amy, ok?)

Here’s how it went. At some point, our pants-suited hero Amy created a Word document called Document1.doc. Then she saved-as so that she could rename it to NationalHealthCareYay.doc. Some boilerplate introductory language, the stuff about how/why Congress shall be deemed to have the authority to pass this bill and such, was copy-pasted in from a farm bill. There may be a standard template used around the office, to make sure all the sections are numbered and fonted propertly, a table of contents generated, etc.

Then the real horse-trading in Congress started. Senator so-and-so wanted a bridge to nowhere so that section was copy-pasted in. Congressman whatsherface wanted to her people to look through it so it was emailed over, and sent back. Someone somewhere had a file with Hillary Clinton’s old health plan from 1991 so some sections from that were incorporated. Numerous sharings, branchings, copy/paste, edits, emails, save-as’es took place. Basically all of these people were (D)s and were in favor of the bill, not (R)s who were somehow diabolically trying to spike the bill.

By now the document was called NationalHealthCareYay – v73 for Brenda (Copy) (Copy) (COPY) – NEW VERSION[Removed bridge funding] DO NOT SHARE (edited for sharing)[version B2].doc. The text had all those strikethroughs and red fonts and side-column notations that you see when you edit documents with the ‘history’ option or whatever it’s called turned on.

I made basically all that up but I’m pretty sure it’s basically correct, in broad strokes.

And anyway, at the end of that process, whatever it was, a part of the statute that was sent to the floor and actually got passed said this:

…through an Exchange established by the State under 1311

Someone somewhere consciously typed and/or pasted that, or the words that eventually became that – each and every word – in to our Word doc. It was not put there by a bot or an act of God.

That person, whoever he/she is (SPOILER: it’s Amy!), had a reason for typing that in, and must have done so consciously. It was not done, presumably, as an exercise in psychography or while on a vision quest under the influence of hallucinogenic mushrooms. There was a reason for writing ‘by the State’ and there was a reason for writing ‘under 1311′, the very first time each of those words were written in our ancestral .doc, the ‘Q source’ of Obamacare if you will. Those reasons had to have been conscious and deliberate ones. (After all, why 1311? Why not some random number? Why mention another section at all? Why ‘by the State’? Why not just ‘exchange’? Etc etc.)

The plaintiffs in the recent Halbig court case have a theory as to that reason: it’s because at some point, the creators of Obamacare had this idea that only offering tax-credits to state-exchange buyers would be a ‘carrot’ to induce states to create exchanges. Maybe later the whole ‘carrot’ theory was dropped or forgotten but the reason it was put there originally does indeed trace to the ‘carrot’ strategy. Now: I don’t know that this theory is true, but it’s a totally plausible one, has grounding in some actual documented discussion that did take place amongst/witnessed by at least some (D) lawmakers, and it explains literally all the facts.

The Reality-Based Community does not have a theory as to how ‘by the State’ got there. They call it a ‘drafting error’ and/or a ‘mistake’ and/or a ‘glitch’. Senators, like Pelosi et al, ‘wrote’ (nominally – I’m guessing Amy wrote this too) an amicus brief claiming that ‘by the State’ is not what they meant. But they do not actually explain how or why it got there.

But again, the statute that became ‘Obamacare’ was not generated by robots or ominously-self-aware AI. It was created by humans. And someone, somewhere, at some point in the legislative history of creating this law, wrote ‘through an Exchange established by the State under 1311′. And they had a reason for doing so.

If the Smart People’s rebuttal to this court case is correct, that reason is ‘simple, dumb, but weirdly specific mistake’. In other words, our Amy had to have written ‘by the State’ when there was no reason to and no one instructed her to. And she had to have referenced section ‘1311’ out of the clear blue sky. This seems unlikely. It is, on the face of it, far less likely than the plaintiffs’ theory of what happened. Nevertheless that’s Smart Peoples’ story and they’re sticking to it.

Very well then. Let’s hear from Amy. Let’s have her tell us, in plain English, that it was a ‘mistake’. I mean right? Amy is the one who wrote this thing (not Nancy Pelosi, gimme a break). She knows why she wrote it. And if she just made a (weird and oddly specific) ‘mistake’ then she is best positioned to attest to that fact.

This would be the simplest and easiest way to smackdown ACA’s critics and shove it in their face. Reporters like Sarah Kliff who appear to be trying to build an entire journalistic career on simultaneously reporting on and cheerleading (but I repeat myself) this law would have a nice feather in their cap if they could just track down and interview Amy. Money quote: “It was just a mistake. I wrote ‘by the State under 1311′ for no real reason. I don’t even know why. No one told me to. It’s not like it was part of the early discussions of the law or anything. I was just feeling weird that day, wasn’t getting any good matches on Tinder, so I decided to throw in a reference to 1311 for the heck of it. I didn’t even know ‘1311’ was a real section of the law”.


Take that, Obamacare truthers! Science wins again!

Well? So? Where is ‘Amy’? Why haven’t we heard from her? Remember, whoever she is, she’s some staffer with a law degree and career aspirations who works/worked for some (D) Senator or Congressman. She totally believes in Obamacare. She could totally heroically defend Obamacare against evil righties by stepping forward now and telling her side of the story. And literally all the players who would need to be involved have every incentive in the world to step forward and convey to us this crucial information, which could save the insurance plans of millions of poor Americans, that ‘by the State under 1311′ was Just A Mistake.

And they haven’t! Not for months and months! As a whole case about it has dragged through the courts!

Under the Just A Mistake theory, this is pretty inexplicable.

Under the ‘carrot’ theory, however, it makes perfect sense: there is no ‘Amy’ to find to testify to the ‘mistake’, because it wasn’t a ‘mistake’.

This is all you should need to know in order to know which way to bet. I’m not saying it’s a sure thing, mind you, I’m just saying: you know which way to bet. The ‘carrot’ theory is actually an explanation and fits the facts and raises no other problems. None of this can be said about the ‘mistake’ (non-)theory.

If you’re genuinely scientifically-minded, and ‘reality-based’, this is the part where you say QED.


11 Comments so far
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It was written by Pelosi’s Basilisk, which threatens to inflict eternal torment on anyone who learns of its existence unless they promote the glitch/drafting error theory. I hope this explains everything.

Comment by chedolf

I’ve written some legislation. It’s not easy. That’s one reason we shouldn’t write a 2,000-page bill under any circumstances, and if we must try, we should spend years opening it up to universal comment so people can point out the four million ways the law contradicts itself and produces unintended results. (A good example would be a state’s decision to adopt a new version of the Uniform Commercial Code.) This isn’t the first time the ACA has nearly sunk under the results of its drafters’ failing to take into account the unimaginable possibility that states wouldn’t fall into line the way they were supposed to.

The process of legislative drafting is very similar to drafting a complicated contract, the kind that ends up being bound in 16 volumes and involves 45 separate investors with indentures and leases and tax-sharing agreements. We don’t draft those on the fly from scratch under time pressure–or at least, on the rare occasions that people are dumb enough to do so, they usually end up in court for a decade. Instead, we start with standard contracts for that kind of transaction and produce mark-ups, which a number of extremely intelligent, hard-working, obsessively suspicious and detail-oriented people then go over and over, tracing out scenarios, looking for flaws, and asking “what do we do if . . . .”

The ACA is probably full of simple glitches. Those are not for the courts to “correct.” The Constitutional procedure is for Congress to fix them. If the idiots who pushed the glitchy bill through in the first place don’t control Congress any more, tough. This particular problem, though, doesn’t look like a glitch. It looks like a carrot that didn’t work, and is now regretted. Again, tough.

Comment by texan999

Now that they passed the bill, Nancy Pelosi is finding out what’s in it.

Comment by Borepatch


You are fucking hilarious

Comment by dana

NationalHealthCareYay – v73 for Brenda (Copy) (Copy) (COPY) – NEW VERSION[Removed bridge funding] DO NOT SHARE (edited for sharing)[version B2].doc

so true

Comment by S

Great piece but only one problem. These far left wing Obamanistas would have never used the evil-empire’s Word product. They are all OneWorld Open Sourcers.

Comment by Dennis Byron

Dude . . . proven right in just a couple of days.

Take a victory lap, you earned it.

Comment by cecilturner

Max Baucus admits that tax credits are conditioned on the behavior of states, not automatic.

The point being that the “by the State” was very probably added specifically because there was worry (mostly by D’s and definitely by R’s) that telling the states how to run their medical welfare distribution schemes would be outside the jurisdiction of the tax committee, and therefore presumably vulnerable to being found unconstitutional by the Supreme Court.

Comment by Dave

The ACA is like a stool sample. After they passed it, we find out what’s in it.

Comment by Lorenzo

[…] of writing the text that way in the first place. The government-side of the argument, meanwhile, has no counter-explanation for why the text is written that way. None whatsoever. Absent that, it’s pretty weak sauce to […]

Pingback by Feldman on King v. Burwell | RWCG

[…] and reveal what they thought they were doing. You know, it’s going to have quotes from “Amy”. […]

Pingback by NYT Headline: Writers Say ACA Language Not The Intent! Actual Text: Legislators Just Didn’t Read It | RWCG

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