Obamacare: Written With Crystal Clarity. . . To Fail?

So much ink has been spilled in anticipation of, and in the 48 hours since, the oral argument in King v. Burwell that I have not felt I had anything meaningful to contribute.  For readers who are not very familiar with King v. Burwell, it is the U.S. Supreme Court case about whether the Affordable Care Act only authorizes subsidies for individuals who purchase insurance on state-operated insurance exchanges, or whether subsidies are also available to citizens of states that did not create their own exchange and, therefore, who purchase insurance through the federal exchange.  The plaintiffs in King v. Burwell argue the text of the ACA clearly and unambiguously supports the former position, while the ACA’s defenders, including the Obama administration, argue that the text of the act clearly and unambiguously supports the latter position. 

Last night, however, after reviewing the transcript of the oral argument, all I could think about was an oft-quoted line from Oliver Twist, by Charles Dickens.  Mr. Bumble, the unhappy spouse of an overbearing wife, responds to a judge’s suggestion that Mr. Bumble’s wife acts under his direction: “If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass – a idiot.”

The quote is generally invoked to describe an application or interpretation of the law that is contrary to common sense. 

Since I first learned of King v. Burwell and its companion cases, I have thought that the challengers’ proffered interpretation of the ACA as a whole–not just a few words read in isolation–not only defied common sense, but was downright absurd.  In short, I thought that if the ACA supposes what its challengers claim, the ACA is a ass–a idiot. 

Why? 

Because the real-world effect of accepting the challengers’ interpretation is the destruction of individual insurance markets in states that did not create their own exchanges.  Because the real-world effect is the demise of the ACA itself.  The whole system collapses if subsidies are not available to individuals who buy insurance on the federally run exchange.  Why in the world would Congress enact a law that included the seeds of its own destruction, that had a hidden time bomb?  Why would it draft a law in such a way that it was bound to fail?

For so-called “textualists,” like Justice Scalia, a statute is unambiguous only if the meaning of its language is clear and that meaning does not lead to an absurd result.  That rule of interpretation is even embedded in our own General Statutes § 1-2z: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” Yet, based on his questioning yesterday, Justice Scalia does not appear to believe that an interpretation of the ACA that would effectively destroy the ACA and individual insurance markets is absurd.  Justices Thomas and Alito appear to agree with him.  (Chief Justice Roberts was uncharacteristically quiet during oral argument.  Justice Kennedy’s vote may be in play.)

The challengers propose an answer to the absurdity problem.  They argue that Congress intended the availability of subsidies to citizens in states that created their own exchanges to serve as an incentive for states to create their own exchanges.  The problems with this argument are many.  To identify just two: First, if the language of a statute is clear and unambiguous–as the challengers contend it is–one does not look to extra-textual evidence to discern legislative intent.  By making an argument that relies on a purported congressional purpose or objective that is not extant in the text, the challengers are violating their own sacred rules of statutory construction.  Second, when Congress wants to coerce states into doing something, it needs to put the states on clear notice.  Yet no state understood when the ACA was passed that a state’s failure to create an exchange meant that its citizens would not be eligible for subsidies when they bought insurance.  What good is a threat if no one knows about it?

What also concerns me, however, is how many highly educated, very smart, thoughtful people–mostly trained lawyers and judges–seem to agree with Justice Scalia’s view that an interpretation of a statute that destroys much of what the statute is intended to accomplish is not absurd.  They are also mostly conservative Republicans.  But if I am going to accuse those folks of allowing their political ideology to bias their interpretation of the ACA, I must admit of the possibility that those on the left side of the political spectrum suffer from the same malady.

Since Bush v. Gore in 2000, I have come to believe that certain cases are so politically charged that it may be impossible to remove ideology from the act of interpreting the law.  Citizens United and Nat’l Fed. of Indep. Businesses v. Sebelius (the Obamacare case) are two other examples.  King v. Burwell appears to be another.  As a lawyer who believes deeply in the rule of law, the notion that certain cases are so politically charged that it may be impossible for a judge to separate his/her ideology from the act of interpreting the law fairly and objectively is deeply troubling.



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