When it comes to criminal law, nothing is more important than the language of a statute. From the due process perspective, a law must give notice of what it prohibits. Not just, “well, everybody knows what it means” from zealous advocates of criminality who can’t figure out a way to clearly express their ideas, but want so badly to criminalize something that they are fully prepared to criminalize far more.
It’s easy to fall back on appealing phrases like “the spirit of the law,” which exist in the imagination of those who believe in spirits. Your spirit says something is a crime. Mine does not. And the prosecutor’s spirit says our spirits don’t count anyway, and the only spirit that matters is his.
This is why words matter. Definitions matter. No matter how much it hurts, these are the only tools available to create a law, or we fall subject to the whims of whoever has the biggest spirit. And rarely does that turn out to be us.
On the eve of oral argument in King v. Burwell, a clash of intellect and emotion will reach its zenith. In an homage to canons of interpretation, Michigan lawprof Nicholas Bagley made an impassioned plea in the New York Times for the Supreme Court to ignore the words of the Affordable Care Act.
Tough luck, say the plaintiffs: The harsh consequences of a ruling in their favor should be irrelevant to the justices, whose only job is to interpret the statutory text. In any event, the plaintiffs contend, those harsh consequences are perfectly consistent with what Congress meant the law to accomplish.
But the plaintiffs are mistaken. It’s not irrelevant that a ruling in their favor would inflict such damage. To the contrary, that fact helps us correctly interpret the statute’s text. Indeed, it shows that the plaintiffs’ understanding of that text is wrong.
Jonathan Adler questions whether the consequences of plaintiff prevailing will be so dire, likely to soften the blow. I assume the consequences will be devastating, preferring the worst case scenario for the purpose of appreciating the price of the principle. I also assume that Congress can leap into the fray and clean up its mess rather than watch millions of Americans crash and burn, if the Republicans choose not to slaughter their own people to make a cheap point.
Bagley makes his best case:
As the Supreme Court has said time and again, no provision of a statute should be read in isolation. Laws must be read as a whole, with an eye to harmonizing their interdependent parts. That means the court is reluctant to read a stray passage here or there in a way that would destabilize an entire statutory scheme.
Well, not quite. When there is ambiguity in the text, then yes, the law turns to alternatives to give it meaning, and in doing so, strives to harmonize interdependent parts. But when there is no ambiguity, when the words are as straightforward as “established by the state,” the plain meaning doesn’t create a facial conflict; it creates a brutal outcome.
Much as I am in favor of the concept of universal healthcare, and much as I consider Obamacare a botched effort at achieving it, notwithstanding the issue in this case, the concern for criminal law and lawyers is that this case tests whether laws are truly what the words say or what people feel they should mean, despite what the words say.
Adam Liptak provides a recap of the positions in the case:
The law’s defenders add that other provisions in the act, along with its structure and purpose, make clear that it called for subsidies in all 50 states. They add that the subsidies, which are intended to reduce premiums for low- and middle-income people, are vital to the economic underpinnings of the law.
Opponents of the subsidies say it is the text of the law that matters, not what individual lawmakers knew or believed.
“It is extremely doubtful that any senators read the entire bill at the time, and even more doubtful that all but a few senators were even aware of how the exchanges were structured,” said Josh Blackman, a law professor at South Texas College of Law who has filed a brief supporting the plaintiffs.
Substitute current “regulatory” efforts to eradicate such trendy social evils as bullying, hate speech and revenge porn, and consider the implications of laws that no longer mean what they say, but mean what people feel they should mean. It’s the difference between truth and truthiness.
It’s an apologia for poorly drafted law, laws passed without the knowledge and understanding of legislators in a rush to fill a perceived gap as with the USA PATRIOT Act or pretty much any law bearing the name of a dead child. We once were said to be a nation of laws, not men. Are we now to be a nation of press releases about laws, vague and fuzzy words for public consumption meaning whatever we want them to mean?
If the issue before the Supreme Court was how to avoid causing needless economic pain to millions of Americans, the political issue, then the solution would be for the Court to reform the language of the Affordable Care Act and do the job Congress blew. It may be desirable in this particular case, but is it desirable jurisprudence?
What many will be unable to do is separate their politics from their principle. Indeed, that’s been a struggle for quite a while, as clashes between desired outcome and reason keep smacking us in the face and forcing our eyes closed. Are you prepared to turn your back on logic and principle just this one time to achieve a desired outcome, while expecting it to be there for you the next time when sides have switched and different sacred cows will be slaughtered?
And if you need someone to blame for this fiasco, don’t look to the courts or those who don’t share your politics. Look to Congress, who enacted yet another poorly written law because it was too much work to get it right. And ponder whether saving Congress from its own incompetence will prevent the next ACA, or USA PATRIOT Act. You know the answer, painful as it may be.