“Obamacare Survives! The King v. Burwell Saga Ctd.

In a 6-3 decision penned by Chief Justice John Roberts, the Supreme Court once again upheld the Affordable Care Act against attack by forces committed to its destruction–interest groups that seem absolutely convinced that our country is better off when millions and millions of people do not have health insurance.

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Random Thoughts On Statutory Interpretation

While doing some research this morning, I happened upon a wonderful quote by the great Second Circuit judge Learned Hand on the issue of statutory interpretation.  The quote seemed particularly apt with King v. Burwell still very much on my mind.  Here’s the quote (from Cabell v. Markham, 148 F.2d 737 (2d Cir. 1945)):

The decisions are legion in which [courts] have refused to be bound by the letter, when it frustrates the patent purpose of the whole statute. . . .  As Holmes, J., said in a much-quoted passage from Johnson v. United States, 163 F. 30, 32, 18 L.R.A., N.S., 1194: “it is not an adequate discharge of duty for courts to say: We see what you are driving at, but you have not said it, and therefore we shall go on as before.”  . . . Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning. (Emphasis supplied.)

[UPDATE: 4/28/15]  A learned member of the bar points out, quite accurately, that the approach to statutory interpretation described above is difficult to reconcile with General Statutes section 1-2z, about which I’ve blogged at length in the past.


Extremity As A Strategy In Appellate Arguments

My fixation on King v. Burwell continues unabated. Recall that the issue in this statutory construction case is whether the text of the Affordable Care Act only permits the federal government to subsidize qualified individuals (by income) who purchase insurance on state-operated exchanges, or whether subsidies are also available to all qualified individuals, regardless of whether they purchase insurance through a state-operated exchange or the federal exchange, www.healthcare.gov.

The question on my mind today concerns the efficacy of a strategy that the defenders, the Solicitor General in particular, appear to have adopted in their appellate briefs: leading with a relatively weaker argument followed by a relatively stronger backup argument.  

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