David R. Henderson  

Does Predictability Imply Bad Faith?

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Today's Single Mothers Compare... Bad Faith and Court Decisions...

Co-blogger Scott Sumner, on his own blog, has written a stinging critique of intellectuals. You can read it for yourself, but here's the part I want to highlight and respond to:

It's an embarrassment that the two sides of the debate [on ObamaCare] line up so predictably on a narrow technical issue. It says that intellectuals cannot be trusted to argue in good faith.

Notice that Scott does not say "some intellectuals" or even "most intellectuals." No. He makes a categorical statement.

I'm one of those intellectuals who was so predictable. When the Halbig decision on ObamaCare, the decision that Scott discusses in his post, came out, I celebrated with this post. And yet, somehow, I still think of myself as someone who can be trusted to argue in good faith.

So let's consider why I celebrated the Halbig decision. Was I happy that it could overturn a substantial part of ObamaCare, aka the Patient Protection and Affordable Care Act? Absolutely. Was I happy that two of the three judges insisted that if the legislation didn't give the IRS the power to set up regulations in states that did not have exchanges, then the IRS couldn't do so? Yes, I was. I don't see how, so far, this implies any bad faith on my part.

What would imply bad faith on my part? It would be if I wanted a court to come to a particular conclusion because I like the conclusion even if I think the court's reasoning is bad. But, as I've said, I think the court's reasoning--at least that of the majority--was good.

So where else would you look for bad faith on my part? How about other evidence? I've written almost 1900 blog posts. Maybe you could judge whether I have bad faith by seeing how I respond to criticism or by seeing whether I admit mistakes.

Or taking the issue beyond me, because, of course, Scott's critique was not of me per se but of intellectuals, there are a number ways to judge whether someone has bad faith. You watch them in debates. You see how whether they answer questions directly or evade. You see whether they ever say "good point" or "touché" in a debate. Singling out one court case and not paying attention to the other ways in which one could judge strikes me as not a good way, not when there is so much other available evidence around.


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COMMENTS (24 to date)
Daniel Kuehn writes:

Part of what amazes me about the response to the Halbig ruling (and others) is how confident people can be about whether the ruling is a good one or not. In that sense I suppose I side with Sumner and Yglesias on this to a certain extent. Both legal arguments strike me as reasonable and I would need to know a lot more law (and read up a lot more on the legislation to arbitrate between them), and it seems like people who DO know a lot more are conflicted. When that's the case, I think it's more damning to see legal opinions line up with policy opinions so substantially.

A writes:

^+1. That's what puts the smile on the cynic's face. Individuals have the sense of independent thought, but they march to the assigned seating.

RPLong writes:

Daniel, that cuts both ways. If one is less certain of the value of the legal reasoning on both sides, shouldn't one also be less certain of whether those who agree with one side's reasoning are arguing in bad faith?

Daniel Kuehn writes:

RPLong -
I'm just remarking that I've been surprised by how many people with no particular reason to have strong opinions on legal questions have such strong opinions. It's something you would expect to see in a bad faith argument but I think that sort of thing is very difficult to diagnose in any given case (which is why I never said, for example, that David is arguing in bad faith). But I do think when you see that sort of thing often enough it's suggestive of the sort of problems that Yglesias and Sumner are worried about.

FWIW I don't think it's so much that so many people do things in bad faith I think it's that they think they have to have a strong opinion on everything and if they're not a equipped to have a strong opinion they can fall into aligning those strong opinions with their other views.

Daniel Kuehn writes:

RPLong -
The way you get around in the world in this condition is of course either to not feel like you always have to have a strong view, or do due diligence in checking things out and then deferring to experts. Deferring to experts works in a lot of cases, but it seems to run into trouble here because the experts disagree on a lot of the elements of this case.

Craig Richardson writes:

I think Arnold Kling's recent book on this subject does an excellent job of illustrating how people on different sides of a debate talk past each other. It should be required reading of all intellectuals. I like David's point about people saying "touche", etc that show you are listening.

Dan W. writes:

If the absence of clarity in how a law should be implemented is just a "narrow technical issue" and if government agencies should be allowed to interpret the law however they best see fit than I have a proposal:

No law debated or signed by Congress should be more than one paragraph long!

If what matters is the "intent" of the law and that intent can be decided by government bureaucrats then why does Congress waste its time drafting long bills?

Of course if the intent of the law can be reinvented after its passage than the notion of a representative democracy collapses. What's the point of deliberating a law if the law can be changed by unelected, unaccountable government agents?

As it concerns ACA / Obamacare, the subsidy flaw in the law was known before the law ever passed. I recall "critics" talking about it and I recall "supporters" saying it would not matter - either states would establish exchanges or the discrepancy would be resolved through the courts or regulatory agencies.

Clearly this disagreement cannot be moderated. Someone is right and someone is wrong and the decision changes how a law that impacts the entire nation is implemented.

This is a "narrow technical issue"? I think not.

Dustin writes:

There isn't really a problem at all with the statement, "intellectuals cannot be trusted". In fact, it is rather absurd to take exception with such a claim.

If we know some intellectuals don't argue in good faith, but we don't know which ones, we are well advised to withhold trust for a random member of the group.

New setting - the police. If 20% of police (a clear minority) beat innocent folks, should we not be justified in our lack of trust in a random police officer?

If 20% of babysitters abuse the children in their care, but we know not which do so, would you entrust your child to a random babysitter? Quite obviously you would not.

The mistake you make in taking exception with Scott's claim is confusing lack of trust for an individual due to their group affiliation with judging each as an individual and according to merit.

Scott advises the latter and is dead on correct to do so. We would all be foolish to blindly place our trust in another simply because they are supposed to be an 'intellectual'.

Yancey Ward writes:

On the issue at hand, it is possible to make the argument for both sides- the subsidies are barred from the federal exchange, and that the language itself is ambiguous- I come down on the plain language side and don't even care about the "intent" since I think intent flows more surely from what is actually written.

Where, in my opinion, the bad faith arises is the secondary issue of who believed what about the provision. In the case of Gruber, it is as certain as it possibly can be that he took the position of the plaintiffs in Halbig circa January, 2012, but when confronted with the recorded evidence, now claims that he can't remember saying those things, nor why he said them. And the supporters of the ACA make truly ridiculous arguments to support Gruber's new story (read Greg Sargent's examples of Gruber "contradicting" his position in the recordings for the flavor of a really dishonest argument).

David, I can think of literally dozens of examples off the top of my head where you have admitted being wrong on an issue of import to you. The willingness to publicly admit error is the sign of an intellectually honest person. However, I am not really convinced Sumner was making a categorical statement here, but probably just makes an error of omission.

Yancey Ward writes:

I think Dustin is correct here. Trust is earned, and intellectuals as a group haven't earned mine, and apparently Sumner's.

MikeP writes:

The disturbing trend that Matt and Scott perceive can be largely explained by the fact that the two sides are highly correlated. People who believe government should take a more active role in health care are exactly the same people who believe government should be more activist in general and in particular believe that government should be able to incrementally perfect its actions to provide the best service it can. People who believe that government should keep its hands off of health care believe that government should be more limited in general and in particular are skeptical of regulatory invasion of the private sphere.

So it's frankly not at all surprising that the side that believes in an originalist Constitution believes in more static legislation and more restrained regulation while the side that believes in a living Constitution believes in more flexible legislation and more adaptable regulation.

Daniel Kuehn writes:

MikeP -
I find your comment a little confusing. Doesn't original intent support the government's case here even though it's typically considered to be a conservative legal approach? I've seen a handful of people suggesting the actual intent was for only certain exchanges to have subsidies, but that doesn't seem to be how most people interpret the original intent here.

Yancey Ward writes:
I've seen a handful of people suggesting the actual intent was for only certain exchanges to have subsidies, but that doesn't seem to be how most people interpret the original intent here.

An example of bad faith, and why Gruber felt that he had to lie yesterday rather than argue his reasoning in 2012 was simply incorrect.

MikeP writes:

Daniel Kuehn,

I'm not referring to the original intent of the legislation. I am referring to an original intent interpretation of the Constitution, which demands a strict reading of the legislation since Congress is the only authority empowered to make legislation.

Daniel Kuehn writes:

Who are you accusing of being an example of bad faith exactly Yancy?

I hadn't seen any of the Gruber stuff - just googled it now. That obviously strengthens the intent argument against the subsidies for the federal exchange but did Congress think that's what they were doing?

Daniel Kuehn writes:

MikeP -
re: "I'm not referring to the original intent of the legislation. I am referring to an original intent interpretation of the Constitution, which demands a strict reading of the legislation since Congress is the only authority empowered to make legislation."

I don't follow - the government's case is not that there are authorities other than Congress empowered to make legislation. The disagreement is over what the legislation passed by the Congress means.

For that matter - aside from the government's case here - since when has anyone disagreed on the question of whether the Congress is the only authority empowered to make legislation?

MikeP writes:

Daniel Kuehn,

What Congress wrote:

an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act

What the IRS wrote:

an Exchange established under section 1311 or 1321 of the Affordable Care Act

That is rewriting the legislation, i.e., making legislation. Only Congress can do that.

since when has anyone disagreed on the question of whether the Congress is the only authority empowered to make legislation?

There is starting to be a good deal of pushback against Congress's tendency to pass nebulous legislation and expect regulatory agencies to write extensive rules. At some point those rules look more like laws than rules because the laws were so vague, and the regulatory agencies look more like legislative bodies because they are effectively filling in the legislation.

I believe I disagree with something David suggests:
"... there are a number ways to judge whether someone has bad faith. ... You see how whether they answer questions directly or evade."

There are some questions which a person cannot answer directly in good faith, because the question comes from an alien framework. Suppose for example that I clap my hands together making a clapping sound, and then ask you which hand made the sound, the right or the left. Suppose I ask this in good faith because I am somehow really that other-worldly. How would you answer? If you want to answer truthfully in your world you have to step outside of the framework in which I expected a direct answer. You have to start talking about something else, such as how sounds are made, before you can get around to your concept of truth.

Daniel Kuehn writes:

MikeP -
Agreed only Congress can do that. Nobody that I know of is arguing otherwise. Do you know different?

At issue is that Congress says that the federal government "shall establish and operate such exchange" when the states do not, and that their establishing "such exchange" legally implies (this is the argument - don't know if that language implies this legally or not because I'm not a lawyer which is why I said in the beginning I'm agnostic on it) that the federal exchanges are treated equivalently or as if they were established by a state.

Now, you can make the case that that's a bad legal argument if you want, but you can't just invent this idea that one side is arguing someone besides Congress can make legislation. They no more think that than you do.

Scott Sumner writes:

David, I actually wasn't thinking of any particular intellectual, just intellectuals as a group, including me.

Here's an analogy. Suppose Steve Levitt did a study of figure skating judges in the Olympics. He estimated that 30% were biased toward their home country, based on statistical patterns, but could not figure out exactly which 30%. In that case I'd say the typical Olympic judge was unbiased, but Olympic judges as a class could not be counted on to give unbiased judgments.

I don't know the percentage of intellectuals who let bias color their views on strictly technical issues, but I suspect it's at least 30%.

It's hard to measure because there are cases where belief on technical questions is correlated with ideology. But then there are cases like the 2000 election, where all the liberal Supreme Court justices just happened to take a "states rights" procedural approach, and all the conservatives just happened to take a federal approach. Do I sound cynical? That's because I am.

Edogg writes:

Scott,

I don't think you're remembering the 2000 election case correctly.
-Breyer and Souter thought there was an equal protection violation by Florida and wanted to remand the case with instructions to do the recount with uniform standards.
-Ginsburg and Stevens did not find an equal protection violation.
-The conservative justices found an equal protection violation but effectively ended the recount because of their interpretation that Florida had set a hard deadline for the recount.

Yancey Ward writes:

Daniel,

You were just ignorant, then?

MikeP writes:

But then there are cases like the 2000 election, where all the liberal Supreme Court justices just happened to take a "states rights" procedural approach, and all the conservatives just happened to take a federal approach.

My recollection matches Edogg's.

The conservatives "happened" to try to follow the letter of Florida law, while the 2 liberal dissenters "happened" to side with Florida's Supreme Court in trying to perfect the law and the recount on the fly.

Why, it's almost exactly like Halbig!

As I said above, it's frankly not at all surprising that the side that believes in an originalist Constitution believes in more static legislation and more restrained regulation while the side that believes in a living Constitution believes in more flexible legislation and more adaptable regulation.

Glen writes:

The best method for determining whether a particular “intellectual” has been arguing in good faith on Obamacare is to examine their positions before and after the Supreme Court's first major ruling on it in the 2012 case NFIB vs. Sebelius.

NFIB ruled on many aspects of Obamacare. But the issue that received the most commentary concerned the so-called individual mandate. Notwithstanding the headlines, the Court's actual ruling was that the mandate was not a proper exercise of federal power under the Commerce or Necessary and Proper Clauses. Essentially, the Court accepted the plaintiffs' activity/inactivity argument.

However, Chief Justice Roberts' also accepted the government's admonition to consider the mandate as a tax, and upheld it (and the overall statutory scheme) on that basis. Most proponents of Obamacare — intellectual, popular or partisan — praised the Chief Justice for “respecting President Obama's signature achievement.” Their legal commentary (if any) tended to focus on other aspects of the ruling, such as the unconstitutionality of the Medicaid expansion.

On the other hand, most legal intellectuals who opposed Obamacare expressed personal disappointment that the Court had not dealt it a death blow but nonetheless acknowledged the Chief Justice's sound and judicially consistent legal reasoning. Meanwhile, popular and partisan opponents of Obamacare viciously condemned the Chief for “selling out.”

So what we see when comparing NFIB with Halbig is generally consistent good faith reasoning on the part of Obamacare's legal intellectual opponents and partisan (or motivated) reasoning on the part of its intellectual supporters. These two groups oftentimes refer to themselves as Libertarians and Progressives.

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