7 comments on “King v. Burwell and Judge-Made Law

  1. I am not a layer, but it seems to me there are a couple of problems with this argument. You argue that congress rather than the supreme court should resolve any ambiguity or other question of meaning in Obamacare. The problem I see is that Obamacare was not passed by congress as an institution, but by a particular congress. That particular congress no longer exists. Congress changes every two years. And they change their minds even more frequently. It seems to me that the intended function of the supreme court was not to change dramatically every two years and thus be a stabilizing influence. So I don’t see why a later congress rather than the supreme court should judge on the intent of a law passed by an earlier congress.

    One thing I have done is written large technical documents. One of the most difficult things is to keep them consistent as changes are made. So it is not surprising to me that some one would forget to update “state exchanges” to state and federal exchanges. This is not so much a case of substituting Y for X, but rather a case where there is Xa and Xb and someone left out an Xb in one case. So the court just replaced Xa with Xa or Xb. While I fully agree that the court sometimes twists the intent of lawmakers to match their own agenda (e.g that corporations are people), this does not seem to me to one of those cases. Some of these judges would be delighted to get rid of Obamacare but had to admit that the obvious intent of congress (that congress which passed Obamacare) was to include both state and federal exchanges.

    • Hi Russ:

      Good comments and concerns. As to your first point, you are perfectly correct that today’s Congress isn’t the one that enacted the law in the first place. Even so, I think Congress is best viewed as an institution in this context: in other words, the critical question is “If legislation contains an error that isn’t an obvious typo (or equivalent), which institution should fix that error–the courts, which have to guess at legislative intent or the legislature itself?” One of those institutions is accountable to popular will in our Constitutional system, the other is not.

      At the heart of this debate is a theory of statutory interpretation called textualism, which holds that statute’s should be read and interpreted based on their plain language and meaning. If that meaning is ambiguous, only then should a court engage in the difficult (and perilous) task for trying to decipher legislative intent from other sources. Most often, that means consulting what’s called the “legislative history” (committee reports, statements, commentary, etc.)

      The trouble there–as many thoughtful commentators recognize–is that committee reports, statements, etc. aren’t the law; only the text is, and citing “soft” and often contradictory legislative history is rife with opportunities for abuse on all sides–from legislators who attempt to sway subsequent judicial opinions by sowing the record with statements that support a particular view to judges who cite legislative history selectively in order to support their own policy outcome.

      Textualism puts the onus firmly on the legislature to MAKE YOUR INTENT CLEAR, and it lessens (though it can’t eliminate entirely) the risk that un-elected judges set policy instead of (or in spite) of the actions of elected representatives.

      Your second point turns on whether the legislature’s intent is “obvious” or not, and I think that’s far from clear.

      In other words, I see no evidence to suggest the intent was “obvious” here, particularly when the plain language in question contradicts that intent. (The ACA stands regardless of whether people falling between 100-400% of the federal poverty line in states that don’t set up their own exchanges qualify for a subsidy or not.)

      The majority cites no clear evidence that this was merely a drafting error, which a court can–and should–correct without forcing the legislature into a costly do- over. In this case, however, the dissent cites numerous instances where the statute readily distinguishes between Xa and Xb, which suggests that Congress meant what it said when, in this all-important provision, it specified that subsidies would apply only to Exchanges set up by the States. As Justice Scalia and others point out, it makes perfect sense to create a strong incentive for States to set up their own exchanges, and the majority cites no clear evidence from the legislative history that demonstrates that Congress added the qualifier “by the States” by accident. What the majority says instead is, “Congress could not have meant that” given the structure of the overall document and its stated purpose of getting everyone involved in the health insurance market.

      Even if Court magically got it right in this in this instance (i.e., they perfectly discerned legislative will and identified and corrected the mother-of-all-typos), I loathe the precedent it sets, which is that courts can and should presume to understand the intent of the legislation better than the legislators themselves, and, further, to effectively rewrite the statute to comport with that intent *without even relying on the drafting history.*

      Think about it this way: you’re a judge, and you don’t like a law Congress passed. Based on the approach to statutory interpretation taken by the Majority in this case, a court is perfectly justified to discern legislative intent based on the “legislative plan” and then to *rewrite* key provisions to accomplish that purpose. Again, even if the Court is correct in this case, that approach has serious implications for separation of powers in our system of government and opens the door to judges frustrating–rather than giving effect to–the intent of the legislature.

      For that reason, even if it was a colossal typo (which I doubt), far better for Congress to go back in and make a policy determination that the subsidies should apply to ALL exchanges than to have the Court legislate that policy from the bench.


      • The online version of the affordable care act is 995 pages. I suspect it was being edited up to the final vote. Although in a perfect world the legislature would make their intent clear, keeping a 1000 page document current and consistent is an impossible task. I have done some 500 pages documents and the difficulty tends to increase non-linearly as the length increases. I would guess that no piece of major legislation is 100% consistent and reflects exactly what the legislators thought at the time. And some things legislated are self contradictory or simply impossible. So the administration (mostly the civil service) always makes some “interpretations” as happened in this case. When this gets challenged it ends up n the courts.

        The problem is complicated by politics. None of the three branches of government is free from political agendas. Although I am not generally a big fan of the supreme court, they at least are not running for re-election the moment they take office. And they tend to be more stable (for better or for worse) over time.

        If you dismantled every piece of legislation that had an imperfection in it then the effect of congress which is already the most constipated body on earth, would drop to absolute 0. In the last while a new president tends to take a majority of congress into office with him or her and then promptly looses that majority during the first mid-term. So Jeb Bush might bring a Republican majority to congress, but by 2018 he is likely to loose it. Would you really like the new Democratic congress to have the power to re-interpret all the legislation passed between 2016 and 2018. They might find some inconsistency in a hypothetical “Freedom of Religion” bill and eviscerate it. Over time congress is a sine wave of alternating politics so if you allow them to do the interpretation it is just a matter of timing what answer you will get. The same can be said for the supreme court, the difference is in the period of the wave. For congress it is 2-6 years. For the supreme court it is more like 10-20.

        Finally (I’ll stop after this), the legislature always has the last say (unless it is a question of constitutionality). In theory there is nothing to stop the current legislation from passing an amendment to Obamacare to make the intent of the current legislature clear. Or to repeal Obamacare altogether. Of course in practice any such legislation would be filibustered and vetoed. And the debate would not be over what the congress which passed Obamacare actually meant to happen, but grandstanding for a sound-byte damming Obamacare. There are clearly times when a piece of legislation is so broken it just has to be tossed out. But it can’t be just because the legislation has become unpopular with the current legislature. At the end of the day, I am a pragmatist. Theory might be all well and good, but someone has to make a judgement in a practical, non perfect, and very real world. And I guess I would prefer it to be a supreme court judge, even one whose political stance I differ with in almost every point, than a representative from Oregon who I happen to agree with on most points but whose number one concern is still to be re-elected. I am no fan of the current court, but I am afraid I am complete disillusioned with congress (although I do know some – well one – state representative of the highest intellect and integrity). If there were more people like you in congress, the pragmatist in me would switch my vote in this case.

  2. It is certainly true that no branch of government is free from agendas, which is why the Framers gave us three to check and balance each other. Without judicial restraint, however, the one un-elected branch (the Courts) can negate the power of the other two. At bottom, that’s what this is all about. The law says subsidies will be available for exchanges established by the States. Period. Everyone knows what that means. No one suggests it’s a typo. But the Court finds ambiguity where there is none and then rewrites the text to mean something else. To my mind, that represents an abuse of power that invites more of the same. Justice Roberts, of all people, should know better. (Ironically, he turns around and writes a ringing condemnation of judicial over-reach in his dissent in the Obergefell v. Hodges case.)

    If the law as passed is defective–i.e., without subsidies available in *all* exchanges, the law won’t work as intended–it is the constitutional obligation of the legislature to fix that mistake, not the courts to presume a fix and apply it, because it’s all to easy for the Court to get that wrong and wind up frustrating, rather than giving effect to, the legislative will. To do so is to exercise legislative authority, but with no one to check the Court in its exercise of that authority. And it doesn’t matter in that analysis whom you trust more to interpret the law in this particular instance or whether one thinks Congress is broken or not. It matters which branch has what responsibility in our constitutional system. This decision blurs those lines in what I think is a dangerous way. To my mind, Congress shouldn’t be passing 1,000 page laws that most of the Congress haven’t bothered to read, and, if they make a mistake in a key provision (that isn’t obviously a typo) it’s incumbent on them to pass an amendment to that legislation. Otherwise, we encourage legislatures to be sloppy and careless, and courts to over-reach in either a sincere effort to correct that or a cynical effort to substitute their own policy preferences for those of the legislature.

  3. You talk of the federal legislature as if it is some kind of Platonic Ideal Form that has a real existence. I am more Aristotelian in this. What exist to me are only individual legislatures, each more pathetic than the last. And I doubt that whatever the current court decides any of these individual legislatures will be any less than sloppy or even that sloppy will be their worst feature. But that is probably just the cynicism of an old man.

    And in this case I am probably just biased. I have a daughter and two sisters who got health care insurance for the first time in years through ACA so I tend to see it as a good thing and destroying ACA as a bad thing. It is probably the sign of an inconsistent and weak mind that I tend to look at court interpretation as reasonable if I agree with the decision and over-reach if I don’t. I guess we’ll just have to agree to disagree about this.

  4. There is ambiguity in the language as evidenced by the definition of the term STATE:

    A nation or territory considered as an organized political community under one government.
    “Germany, Italy, and other European states”
    synonyms: country, nation, land, sovereign state, nation state, kingdom, realm, power, republic, confederation, federation
    “an autonomous state”
    an organized political community or area forming part of a federal republic.
    “the German state of Bavaria”
    synonyms: province, federal state, region, territory, canton, department, county, district, shire
    “the country is divided into thirty-two states”
    informal term for United States.
    plural noun: States; plural noun: the States

    • Zach: While the term *can* be ambiguous (as the definition you quote suggests), even the purest textualist will concede that context matters. No one–and I mean no one–seriously contends that the phrase “by the State” has the generic meaning you ascribe to it here in the context of the ACA. The statute clearly distinguishes between exchanges established “by the State” and exchanges established “by the federal government.” Even Justice Roberts–who’s looking for ambiguity to justify the radical step of re-interpreting the text–doesn’t go that far because he recognizes that it isn’t a credible argument. That’s the funny thing here. Everyone knows what the term means in context, but the majority concludes “Oh, but Congress couldn’t have actually meant that,” treats it as, effectively, a typo (inadvertent error, but without any evidence to suggest it is, in fact, a typo) and then rewrites it to mean what the the majority thinks it should mean.

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