The subject is as political as it gets for Paul Krugman in his New York Times column, but that changes nothing about the fact that he is, legally, as wrong as he could possibly be. Worse still, he uses his soapbox to make readers stupid, which is inexcusable.
Once upon a time, this lawsuit would have been literally laughed out of court. Instead, however, it has actually been upheld in some lower courts, on straight party-line votes — and the willingness of the Supremes to hear it is a bad omen.
Krugman chalks it all up to partisan politics. Obamacare. What could be more partisan, and indeed, it will remain a partisan battleground. But not for the reasons Krugman thinks. The suit deals with what appears to be a gross error in how the law was written, bearing on the availability of subsidies only to purchasers in state exchanges. Somebody screwed up.
It’s a ridiculous claim; not only is it clear from everything else in the act that there was no intention to set such limits, you can ask the people who drafted the law what they intended, and it wasn’t what the plaintiffs claim.
Words. Laws are made up of words, and words have meaning. If the words in the laws don’t reflect what Congress or the President intended, it’s not the words’ fault. Basic statutory interpretation is that the law is what the words say it is. There is no fuzzy exception for when the words say one thing but the intent was something else.
But if you look at the specific language authorizing those subsidies, it could be taken — by an incredibly hostile reader — to say that they’re available only to Americans using state-run exchanges, not to those using the federal exchanges.
If by “incredibly hostile reader,” Krugman means someone with a basic familiarity with the English language, then he’s right. That’s what the law says. If the words don’t express congressional intent, then the solution is to change the words, not ignore them and pretend they say something else. Of course, what’s left unsaid by Krugman is that in light of the midterm election outcome, the chances of fixing the mistake is slim to none. That doesn’t explain why it wasn’t done correctly in the first place, or fixed immediately upon realizing that the words failed to adequately express the intent.
In the title of his column, Krugman calls the error “Death by Typo.” There is such a thing as a “scrivener’s error,” that the guy who wrote it down made a mistake, left out a word or put in the wrong punctuation, and that the error was not substantive even though it has a disproportionate impact on meaning. A typo is such an error. I know typos. This was not a typo. This was not a word misspelled because the scribe erred. This was a structural error in the law enacted. Should it be corrected? Of course, but that’s a matter for Congress.
I have no interest whatsoever in the position taken by Krugman about how the law should be read or what the intent was. I do, however, have an interest in people not being made stupider by a Nobel Prize winner spewing legal nonsense because it suits his political narrative. Had there been a word in there, or missing from there, that rendered the language of the statute meaningless or incomprehensible, it would be one thing. But the language was clear and complete. Just not what was intended. They screwed up. Badly.
Unlike Josh Blackman, who views Krugman’s column as “disingenuous” and “ridiculous.” it’s not so far from a scrivener’s error to reflect moral culpability. It’s completely wrong, and grossly misstates statutory construction, where words say what they say and mean what they mean. And when the words are clear, that’s what the law is. While there may be partisan smiles on the face of judge who ruled against Obamacare, there is no one to blame but those who wrote the law poorly and carelessly.
On the other hand, Josh nails it when it comes to Krugman’s opening anecdote, the same rhetorical ploy designed to set up the ignorant for the coming fall.
Krugman begins his missive by relaying a story from his childhood about a mistaken deed that was corrected by a town clerk.
My parents used to own a small house with a large backyard, in which my mother cultivated a beautiful garden. At some point, however — I don’t remember why — my father looked at the official deed defining their property, and received a shock. According to the text, the Krugman lot wasn’t a rough rectangle; it was a triangle more than a hundred feet long but only around a yard wide at the base.
On examination, it was clear what had happened: Whoever wrote down the lot’s description had somehow skipped a clause. And of course the town clerk fixed the language. After all, it would have been ludicrous and cruel to take away most of my parents’ property on the basis of sloppy drafting, when the drafters’ intention was perfectly clear.
This story is either not true, or involved a huge mistake of law (I’m leaning towards the former).
An error in a deed can be reformed if all parties agree that it’s an error, and approve of the correction. Perhaps young Krugman wasn’t privy to the mechanics of the fix, and thought it was just a clerk changing a deed to reflect what his daddy told him. But to suggest this, that a clerk can unilaterally “fix the language” of deed is, again, to make people stupider. It isn’t possible to lawfully do so, and if some clerk somewhere altered a filed deed to say something different, then a terribly wrongful thing happened.
But what is most notable from Krugman’s story, and relates to the problem raised as to Obamacare, is that his parents’ problem was caused by “sloppy drafting.” The burden of sloppy drafting is borne by the sloppy drafters. The incentive is not to be sloppy, but to get it right. And of all the things Krugman gets wrong in his column that make people stupider, this is the worst. Sloppiness is the flaw, not the excuse.