Monday, June 29, 2015

Some observations on King v. Burwell

My friends at the Journal Sentinel editorial board like the Supreme Court's decision in King v. Burwell. Fair enough. My take is different. But they get some things about it wrong. Let me offer the following friendly correctives.

First, they say that they always regarded the challenge to the availability of subsidies in federal exchanges to be frivolous. They are entitled to that view, although how non-lawyers presume to know that is beyond me. The frequency with which lay people dismiss legal positions as frivolous is one of my pet peeves. To call a claim "frivolous" is not to say that you think its wrong or even unlikely to prevail. It is to say that no lawyer could make a reasonable argument for it. The claim in King v. Burwell was not even close to frivolous.

But don't take my word for it.  Here's who also didn't think it was frivolous. Every member of the United States Supreme Court. Obviously three Justices thought it meritorious. But writing for himself and the other five, Chief Justice Roberts said that "[p]etioners' arguments about the plain meaning of Section 36B are strong." Sorry, guys, "strong" is not the same as frivolous.

Second, they say that Chief Justice Roberts, reading the statute in context, found the answer to be "clear." No, he did not. In fact, that is precisely what he did not find. He went to great lengths - did "somersaults" and interpretive "jiggery-pokery"* in Justice Scalia's colorful terms - to find that the statute was not clear. It was ambiguous. That's important . Unless he could say that it was ambiguous, he would have no choice but to apply it as written.

Third, Chief Justice Roberts made no finding about legislative intent - at least not in the way that courts typically do. He did not scour the legislative history and learn that "Congress" had expressed an unrealized intent to have the subsidies available in federal exchanges. He couldn't. The legislative history is almost completely silent on this question.

Fourth, whatever Congress did, it was not, as the board puts it, a "clerical error." Any minimally competent lawyer who read this language would know immediately that it limited subsidies to state exchanges. In fact, if that what's you wanted to do, this is precisely how you'd go about it. This was no typo. (If, in fact, Congress did intend subsidies to be paid in the federal exchanges, it should frighten us all that none of the expensive lawyers who populate the District of Columbia caught this.)

Finally, the Board kicks dirt at the idea that courts ought to apply legal language "literally" as if statutory construction was best seen as a jazz riff. You might as well criticize your doctor for "literally" applying what she learned in medical school. Reading statutory language to do what you think will make a law work better (and, therefore, must be what Congress "really"meant) necessarily requires that you form your own judgment about what the law is supposed to do and how that should be done. But that will almost never be obvious. Even in King, the Court had to decide that Congress was not limiting subsidies to state exchanges in order to provide states with an incentive to create them. It had to decide that the possibility that the absence of subsidies would lead to adverse selection in federal exchanges such that Congress simply could not have meant what it seemed to say. Whether you think they got it right or not, these are legislative - not judicial - judgments.

The one thing about "formalistic" and "literal" applications of the law is that they prevent judges from doing whatever they want.  They respect the separation of powers. I don't think any particular law - no matter how much we may like it - is worth abandoning these foundational elements of our constitutional structure. If the ACA needed saving, it was a job for Congress and not the Supreme Court.

Cross posted at Purple Wisconsin

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