Some Thoughts on Why King v. Burwell Is Wrong, But Also, Maybe, Right

Occasionally, I’ll be sitting in church, and I’ll hear someone start dissecting the Bible like a piece of legislation: “Well, if Jesus meant ___, he wouldn’t have said ___, because then ___ would be superfluous.”  Or some similar thing.

As a lawyer, I understand this impulse — and do my very best to resist it.  I think there is very little, if any, good that comes of trying to interpret scripture according to formalistic rules — rules that I can pretty guarantee that none of Moses, Isaiah, Jesus, Peter, or Paul had in mind when they uttered or wrote down their timeless words.

You try something like that and you end up — routinely — giving words significance that they were never intended to bear — and for what reason?  Scriptures don’t demand to be interpreted like a statute.

Lawyers, I tell people, make those types of arguments (ones that they often don’t believe) not because they’re necessarily persuaded by them, but because they are the best they have to work with.  No one should pay much attention to statutory interpretation outside of a courtroom.  Because, frankly, it’s absurd in so many ways.

All this to say, statutory interpretation is a complicated thing and a necessary evil.  It should be regarded seriously only to the extent its necessary to do so.

A Primer on the Statutory Interpretation Process

But courts do have to interpret statutes.  And in order to give meaningful guidance to those who write (i.e., legislatures), read (i.e., citizens), and who plan their lives according to law, they need to do it consistently.

Lawyers and judges have a very formalistic set of rules for interpreting statutes.  Rules that yield arguments (and even results) that not everyone agrees with, but that most can at least usually agree are consistent with an accepted process.

And you can’t understand judicial decisions without a good sense of what the accepted process is for this type of decision making.  Otherwise, you’ll end up very much like me in church with the lawyer and lay Sunday School teacher.

Here’s a very brief outline as to the way the process is supposed to work.

  • The court is supposed to look at the language governing the issue before it and determine what the plain meaning of that language is.  If the meaning is plain and clear, the court is supposed to stop.  That’s the end of the matter — unless the plain meaning interpretation is clearly a drafting error or would lead to an absurd result.  Both of these exceptions are extraordinarily high bars to clear in order to become applicable.  A drafting error is more than a bad mistake and an absurd result is more than a bad result — they’re basically things that make the statute internally inconsistent.
  • If the court finds that the language is not clear, however, then the court is supposed to take a look at other sources — intent of the legislators who passed the law (the the extent such thing can even be meaningfully determined), how the statute interacts with other law, etc. — to determine what it was that a legislature had in mind when they drafted that provision, in a manner that is consistent with the text of the operative provisions (ambiguous though it may be).

While the end goal of any statutory interpretation is to ascertain the intent of the legislature who drafted the law, the accepted approach is predicated on the common sense and important idea that the best evidence of legislative intent is what a legislature actually enacted — after all, that’s all people who read and order their lives by a statute have to decide what they need to do to comply.  A law with a hidden meaning contrary to its plain text gives worse guidance than no law at all.

The idea is that, “It doesn’t matter what you intended, when what you wrote is clear — because I can’t look inside your head, Congress.  All I can do is read the statute!

So, under the accepted approach, a Court is to interpret according to the rules and consequences of that interpretation be damned — it’s not the Court’s job to fix bad legislation.  After all, Congress may, if it determines that the Court has misapprehended its intentions (based on its own words), go back and overrule the Court with clear language!

That’s how the process is supposed to go.

King v. Burwell — Why the Majority Opinion is Thoroughly Unpersuasive

So, with that in mind, let’s turn to King v. Burwell!

I do not find the majority opinion terribly persuasive.

It discounts the plain language of the operative provision.  It looks for intent in supposed internal consistency that ignores a completely plausible (at least within the statutory scheme itself) alternative reasoning — that customers who purchased health insurance on the federal exchange would not be provided with subsidies as a means of incentivizing states to set up their own exchange.  As Justice Scalia says in dissent, “What stops a federal Exchange’s electronic calculator from telling a customer that his tax credit is zero?”  Why should the fact that could occur throughout a state justify departing from plain language — when there’s an easily ascertainable reasoning why such a thing might be done?

That’s not an internal inconsistency that rises to the level of a clear drafting error or an absurd result.  At most, it’s a badly written law — and, consequences of statutory interpretation be damned, the process must be followed!

Truthfully, I find the majority opinion to have almost no persuasive power at all unless one accepts the (actually entirely reasonable) conclusion that Obamacare meant to cover everyone and make healthcare “affordable” via subsidy in every state.  (Pause here to note that the majority opinion is a rather scathing denounciation of the “Affordable Care Act” in its own way — the law is saved only by acknowledging that without the government buying a good portion of most people’s health care it would send the nation’s insurance markets into a “death spiral.”).

But this is not how the process is supposed to work!  You’re not supposed to start with a self-evident purpose of a law and fit the words to meet that conception.  If fact, that might be the only definition of “judicial activism” that everyone would agree with.

No, it’s the words themselves that are supposed to tell you what the law exists to do.

If a law is hopelessly internally contradictory, then, by all means, interpret it’s provisions to be consistent.  We don’t blindly imagine that legislatures pass laws that inevitably destroy themselves.  But if a law is technically internally consistent — even if in an unproductive way — it’s a rejection of the process to adjust plain language to consistent with some external conception of purpose, which is, in my opinion, what the majority opinion does here.

Otherwise, how are people supposed to structure their own compliance?  By a general societal conception of “this is what the law was supposed to do”?

Can those of my readers who might be reflexive Scalia-haters see that he actually has a point — and a strong one?? (And you should read a piece he wrote titled, “The Rule of Law as a Law of Rules.”)

King v. Burwell — Why the Majority May Nonetheless Be the Right Result

But…

What if the accepted process leads to a result that everyone knows is actually not the one that Congress intended?  And what if Congress can’t (or, quite obviously, won’t) “correct” the Court’s plain language interpretation?  What if the challenge here, even though rooted in the text of a statute, is quite obviously a political gotcha?  And, furthermore, what if people have already ordered their lives in reliance upon an agency implementation of the law that’s inconsistent with the plain language?  What if all these things are true?

At some point, could the accepted plain language approach — designed to constrain the Court to its judicial role and keep it out of the domain of Congress start to elevate form over substance in a particular case?

Justice William Brennan once famously claimed that the philosophy of interpreting laws according to original intent (or, for purposes of this case, substitute “plain language”) was “arrogance cloaked in neutrality.”  I do not agree with this statement as a general matter, but I think that there are cases at the margins and in relatively extraordinary circumstances in which the accepted process of statutory interpretation can result in an elevation of form over substance — and actually result in the Court usurping the legislative role by following the ordinary process.

I think this may be one of those times.

And that’s why, or all the passages in the majority opinion, I agree with this one most:

In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—“to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan.

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.

All this to say…

As much as it pains me to say so, I think the Court got Burwell right.  Even though the reasoning is unpersuasive and strained.  Even though it didn’t follow the process.  It’s a classic case of hard cases (potentially) making bad law.

If the subsidies were disallowed based on the plain language, we can probably all agree that, whatever the legislators who voted to pass the Affordable Care Act intended, they didn’t intend that.  And we know that Congress won’t be able to “fix” the issue by adjusting the law.

Statutory interpretation was not designed to penalize Congress for a drafting error, which is effectively what would happen here.  The normal safety valve of Congressional correction is impossible here.  The Court shouldn’t have to close its eyes to that.

Who’s to Blame for this Bad, But Probably Correct, Decision?

I know that most people are going to blame Justice Roberts for a poorly reasoned opinion, or Justice Scalia for another unreasonable screed full of personal attacks and sarcastic cheap shots.

But I want to suggest to that the Burwell decision is a consequence of a failed political process.

All involved in the drafting of, opposition to, and litigation over the Affordable Care Act bear some of the blame.  This is what you get when send a politically-motivated case for a shoddily-drafted, poor excuse for a law to the Supreme Court and demand dispassionate neutrality: “Just call the damn balls and strikes, guys!

Don’t  blame the Supreme Court for this one, folks.  After all, as I might say to my son, “Do you really think you can create a mess, demand that I clean it up for you, and then yell at me when I don’t do it exactly how you like it?”

What I think you have here is the Supreme Court essentially saying to Congress and America, “Don’t go out and create your problems and expect us to solve them by blind adherence to a formalistic set of rules that are going to end in a bad result that doesn’t make sense.  We’ll not have any part of this mess.  It may be our job to say what the law is, but it’s not our job to solve your purposefully created problems.”

And I can’t say that I blame them.

Disclosure: I have health insurance through Healthcare.gov (because Utah did not set up its own exchange), and receive a subsidy the help with the cost of the insurance, which I stood to lose had Burwell come out the other way.   That said, I’ve been a consistent opponent of Obamacare and would much rather want to be free to negotiate my own rate for a catastrophic insurance plan that is now unavailable to me (without penalty) because it doesn’t meet Obamacare’s standards.

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