David R. Henderson  

Bad Faith and Court Decisions

Does Predictability Imply Bad ... Mark Thoma's Selective Edits...

I wrote my earlier post this morning when I woke up in the middle of the night. I finally got back to sleep and woke up with another thought.

Here would be a test of Scott Sumner's claim. You would apply it to people who you think have shown bad faith in the current Halbig debate. In Scott's view, that is intellectuals, by which he seems to mean virtually all intellectuals.

The test is this:

Take some policy issue in which a proponent wants a particular outcome, say, tort reform. Someone proposes a piece of legislation that does everything the proponent wants. It's a beautiful piece of legislation. This same proponent, though, thinks that the U.S. Constitution does not give the federal government any power to legislate in the area of tort reform. A Supreme Court, with at least 5 justices hostile to tort reform, overturns the federal legislation. Does the proponent congratulate or castigate the Supreme Court's ruling? I'm not asking whether the proponent congratulates or castigates the Court's reasoning: you can get to a good conclusion with bad reasoning.

P.S. I should add, in case it wasn't clear, that I argue about this with Scott Sumner because I do think of him as someone who argues in good faith. It was the fact that Scott made the claim he did that I found so disturbing. There are people in the blogosphere, who, if they made the charge Scott made, I would feel much less inclined to argue with.

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COMMENTS (17 to date)
MikeP writes:
This same proponent, though, thinks that the U.S. Constitution does not give the federal government any power to legislate in the area of tort reform.

As I commented on the earlier post, this already biases the test. There are two types of people: those who believe that the Constitution limits government powers and those who believe that it doesn't. So this test is really valid only for constitutional conservatives and libertarians.

Regardless, I would hope that the intellectual in this case would have taken a stand against the legislation in the first place, so she should be happy that the legislation was overturned -- though perhaps not if the reasoning wasn't that it was unconstitutional.

MikeP writes:

Here's another test, albeit one that also applies only to conservatives, specifically for this case.

I skimmed sections 1311 and 1321 of the ACA. I found nothing in there that limits the words "exchange established by a State" to preclude a state simply passing a law that says, "The state shall establish a health exchange in the following way...", and then describing the state portal to the federal exchange.

As legislatures are wont to do, the law could even be retroactive so all subsidies are covered just as in any other state with a state-run health exchange. Frankly, there was nothing I saw in the legislation that says that the state governor or health commissioner -- or anyone else in the state administration for that matter -- couldn't write a paragraph that "establishes" the state exchange as the state portal to the federal exchange.

The test: Should the IRS allow subsidies for those states that establish their exchanges in this way? Should the courts allow it?

Koz writes:

I think you're confusing yourself between outcome and process. Specifically there's a tendency among pundits to think the outcome is important and the process goes away in the wash soon enough. I used to think that myself but now I go the other way.

Specifically because bad faith in advocacy is so closely tied to process. As you mentioned, consistency in favoring particular outcomes is not bad faith, in fact it's more likely that flakiness in that regard would smack of opportunism.

But, it is the sine qua non of Left-liberalism in America and other places to use bad faith advocacy to control the process whereby we create laws or cultural values, in this case litigation sometimes legislation or the court of public opinion. Things like ad hominems, reputational bullying, misrepresentation and spurious accusations of stupidity or ignorance are the coin of this particular realm.

For example, I put a cite to Balkinization in the URL field above. Balkinization is the leading group blog of the liberal legal establishment, and the example I cited is a fairly typical one, and only a couple of days old. And what's in it cannot be credibly maintained in light of Jonathan Gruber's comments on the subject which have come to the fore in the last day or so. Professor Siegel can certainly believe that according to the law the IRS should give tax subsidies to participants on the federal exchange but against what he wrote in that post it's also reasonable that other people have good reasons to think it shouldn't.

For that matter, Gruber himself should retract any accusations of "nuttiness" against the Halbig plaintiffs since he has explicated well enough their view of the statute, even if he hasn't endorsed the litigation itself.

In short, regularity in favoring a particular outcome is not bad faith. Regularity in attempting to control how the other side gets to state its case is.

Koz writes:


I agree with MikeP's point that different folks have different strokes. But both Scott and David seem to believe that a single believable truth can be found if only the parties argue in good faith.

Accordingly David asks:
"Does the proponent congratulate or castigate the Supreme Court's ruling?"

But there are two conflicting values in the example: the value of tort reform versus the value of fidelity to the US Constitution. Does David know that one of these two values is supreme? I don't. But the proponent probably holds one of these values more dear than the other. I suppose the proponent will refer to his relative valuation before deciding whether to congratulate or castigate.

In a blog I am building a case that we should expect different people to embrace different deep systems of belief. There is not just one way, one perception of "good faith", through which a set of organisms can benefit from cooperation. How many ways are there? Well, how many species now survive on Earth?

Daniel Kuehn writes:

Richard O. Hammer -
re: "But there are two conflicting values in the example: the value of tort reform versus the value of fidelity to the US Constitution. Does David know that one of these two values is supreme?"

But I think this confuses the question of why someone might want to argue in bad faith with whether they are arguing in bad faith. If you thought the Constitution prohibited the reform you may not value fidelity to the Constitution highly at all but you would only be arguing in good faith if your claims about the constitutionality of the decision aligned with your understanding or a fair reading of the Constitution.

Take an abolitionist - an abolitionist arguing in good faith certainly doesn't value the antebellum constitutionality of slavery but he would be arguing in bad faith if he suggested such constitutionality was not the reality. Indeed it was because they were arguing in good faith that they were so focused on rectifying the problem constitutionally. None of this threatened the values they espoused.

Daniel Kuehn -
The belief that some "we" can argue in good faith assumes that participants in this "we" coexist in one of life's sweet spots, i.e. one of those sets of circumstances in which cooperation really can be beneficial for all the "we". In such a sweet spot of circumstances we differ on details but remain unified in faith to some set of overriding values. "Good faith" means loyalty to that set of overriding values.

For an example of a not-sweet spot, imagine yourself in Nazi Germany. The Nazis knock at your door and want to talk about the whereabouts of your in-laws who happen to be hiding under the floor. Something of an argument breaks out between you and the Nazi sergeant. Are you answering in good faith? There is not a single system. In this case you can choose between two faiths: good faith with the Nazis or good faith with your in-laws.

Throughout life, I claim, there are only some circumstances in which beneficial cooperation can be achieved. It is in those lucky circumstances in which we can share "good faith". We who have grown up in the US are generally in such lucky circumstances. We are so lucky that many of us actually seem to believe that life might be that way in general.

I say more in a paper targeted to libertarians, if you are curious.

David R. Henderson writes:

@Daniel Kuehn,
If I understand you correctly, this is a case where I agree with you. What I should have said is that the person who likes the result, tort reform, but thinks that the Constitution does not allow the feds to do it, should at least point out the tension. He could say something like “The Constitution does not allow this very good reform.” Then, if I understand Richard O. Hammer’s point correctly, his point comes into play. The person who likes tort reform could say “I think federally imposed tort reform, no matter how it looks, is unconstitutional. But this particular reform is so good that it’s worth ignoring the Constitution. But let’s be clear that we are ignoring the Constitution.” That person would be arguing in good faith.

Daniel Kuehn writes:

David -
And I was focusing more narrowly on Richard's statement. Your second quote (starting "I think federally imposed....") is what I was saying someone arguing in good faith would say, and if that's what Richard was saying that's great. I took him to mean that different valuations of the Constitution could result in a multiplicity of "truths" (I'm not sure that's the best word for it, but it was the one he used).

Your initial post is quite interesting and I would say that the reasoning matters a lot for whether it's appropriate for someone to congratulate or castigate... and I suppose it also depends on what they're congratulating them for!

Obviously they're under no obligation to congratulate what they perceive to be a bad outcome. They ought to congratulate the court for coming to a good ruling if good reasoning is used. They ought to castigate if they came to the ruling with bad reasoning.

I had that reaction to the NFIB v. Sebelius ruling (fully aware of course that I'm no lawyer and it was just my impression from what I read), that it seemed like strange logic to come to a reasonable conclusion.

David -
I agree that a sort of good faith is shown when a speaker acknowledges tension with the value-system which the speaker is disregarding in order to advance the speaker's own value-system. But this is not good faith in general; it is only good faith with holders of that one other value-system. It strives to hold together a "we" including adherents to both value systems, a "we" which may benefit from finding a way to cooperate.

But, unless I am mistaken, cooperation is not always going to happen. Life is full of cases where a set of organisms (A and B) cooperate to feed upon another organism (C). Politics provides a tool for such feeding. A and B do not need to acknowledge tension with C's value-system. All A and B need to do to cooperate is to acknowledge each other's value-systems.

It will help A and B if together they can dismiss any sense of moral obligation to C. Examples:

  • People (A and B) who eat animals (C) have been known to tell each other that animals do not have feelings or souls.

  • Leftists (A and B) say that rich people (C) are callous.

ThomasH writes:

I think a good example of, if not bad faith, motivated reasoning, is conservatives and libertarians who agree with the reasoning of Hobby Lobby. Normally conservatives and libertarians agree with the standard economic analysis of employer transacted ("provided") health insurance, that (aside form the tax subsidy it contains) it is just another part of the compensation package; that is that the employers uses the worker's money to transact for ("provide") insurance.

Yet in Hobby Lobby, suddenly econ 101 was forgotten and health insurance became a boon that generous employers bestowed on their employees and this generosity entitled them to make sure that the employees' insurance was not going to reimburse them for actions that goes against the employer's religion.

Yancey Ward writes:


You have a somewhat reasonable, but I believe mistaken, point, but the Hobby Lobby case, as has been pointed out multiple times in many different forums, wasn't decided on constitutional grounds, but was instead decided based on a law passed by Congress itself, Religious Freedom Restoration Act. In the ACA, Congress itself could have written that the RFRA was null and void in this case, but it didn't do that. The court was resolving a dispute between two valid acts of Congress (you can argue the RFRA should be invalid, but that is for another case).

Now to your point- the ACA mandated the coverage, and Hobby Lobby had not been covering those before the ACA mandate. So it is not necessarily the case that Hobby Lobby is refusing to spend the employee's money on birth control/abortifacients. A "conservative/libertarian" might well reply that by not spending them for the employee, Hobby Lobby will now be paying them slightly more in other benefits. Until you can prove otherwise, your point is valid in my opinion.

And, then, to take it to another level, by mandating the birth control/abortifacients as part of the standard package, the ACA was not mandating Hobby Lobby spend the money of employees who wanted such coverage, but was also mandating the spending of the money of employees who did not want such coverage.

Yancey Ward writes:

That should have read "your point is invalid".

Yancey Ward writes:

MikeP wrote:

I found nothing in there that limits the words "exchange established by a State" to preclude a state simply passing a law that says, "The state shall establish a health exchange in the following way...", and then describing the state portal to the federal exchange.

Yes. This has been pointed out in multiple forums in the last week, and will likely be the response of many of the states without their "own" exchanges should the DC circuit's ruling hold up. I agree, there is no language in the ACA that would prevent that.

Mike W writes:

MikeP & Yancey Ward

So what you're describing seems to be a workaround to avoid Congress having to revisit the ACA, right? Are there any reasons some states might choose not to take that action? And if so, wouldn't that indicate that the wording in the ACA was intentional in order to get the law passed? Maybe I'm going in circles here.

MikeP writes:

The reasons not to take that action would be purely political. But now all the cards are on the table, and the price to a huge number of constituents is well known. It would be an unlikely politician who would refuse to so establish his state's existing exchange, and he'd probably be impeached for not doing it.

This isn't like Medicaid expansion under ACA, which leveraged federal monies but still cost much more in state monies. From the state's perspective, this is free money directly to the state's citizens. I think every state will take it.

And if so, wouldn't that indicate that the wording in the ACA was intentional in order to get the law passed?

It's still not proof it was intentional, but the main architect of the bill, Jonathan Gruber, knew about the wording back in January, 2012:

Now, I guess I'm enough of a believer in democracy to think that when the voters in states see that by not setting up an exchange the politicians of a state are costing state residents hundreds and millions and billions of dollars, that they'll eventually throw the guys out. But I don't know that for sure. And that is really the ultimate threat, is, will people understand that, gee, if your governor doesn't set up an exchange, you're losing hundreds of millions of dollars of tax credits to be delivered to your citizens.
MikeP writes:


I see no reason to change my response much from that of the last time this came up.

Yes, economics tells us that employer provided health care is part of the employee's compensation. Nonetheless, the government has incentivized both employer and employee into this arrangement, and it is clearly the employer making the decision on what health care to buy with the employer's money. That the employer would rather, tax incentives being equal, give money to the employee so he could buy his own portable health insurance is beside the point. You seem to think the Supreme Court should make a decision based on such a hypothetical. Isn't that rather silly as well as legally unsupportable?

The Supreme Court doesn't decide cases based on economics: it decides cases based on law.

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