While King v. Burwell falls outside my wheelhouse (which means whatever I may say about it should be taken with a grain of incredulity), the New York Times editorial on this great victory for the law compels me to write.

Its core claim — that an ambiguous four-word phrase buried deep in the 900-page law eliminates health insurance for millions of lower-income Americans — was preposterous. The entire point of the law, as embodied in the title of its first chapter, is “Quality, affordable health care for all Americans.”

That explains why the USA PATRIOT Act must be good law. After all, look at the name.  The “point of the law” has nothing to do with the substance of the law. Good intentions don’t control; words do. Glorious purpose covers a great many faults, not the least of which is the government’s facility at coming up with grand names and missions followed by crappy, poorly conceived, horribly written laws that wreak havoc.

From a policy perspective, the Supreme Court’s saving of Obamacare was for the best. The alternative would have cased harm to a great many people, who would have been screwed, who would have had to pay for compelled insurance out of pocket if they were deprived of the subsidies and tax benefits that made the cost of Obamacare palatable. There is no doubt that there would have been massive pain to Americans.

Had the decision gone the other way, Congress could have immediately gotten to work, fixed the error, and eliminated the pain.  But this Congress? Our Congress? Would it have been capable of fixing it, or would it have turned it into a political football to burn the other party at the expense of people?  It could happen, but I wouldn’t hold my breath.

And if Obamacare is to be construed by aspirational chapter headings, then let’s at least be honest about it. While it makes the purchase of health insurance more affordable, the insurance obtained is crap. It’s catastrophic care insurance, with (in NY) $6,000 in deductible and co-pays before they get any benefits. That’s huge. I don’t think affordable means what they think it does.

Yet, the Times calls the challenge preposterous.  Linda Greenhouse lets her freak flag fly in pretty much the same way.

Do “words no longer have meaning,” as Justice Scalia put it in his angry dissenting opinion? What, after all, could be clearer? The state, not the federal government. The two are not the same. They are different! So poor and middle-class people in the 34 (mostly red) states that refused to set up their own insurance exchanges, defaulting that task to the federal government, are just out of luck. They aren’t eligible for tax subsidies to help them buy insurance, subsidies that are critical to making the law work. End of story, end of case, end of the Affordable Care Act (or Scotuscare, as Justice Scalia said the law should be re-named).

The chief justice’s masterful opinion showed that line of argument for the simplistic and agenda-driven construct that it was.

So snarky. But she knows as well as anyone that statuory construction begins with the words of a statute, and if they are clear and unambiguous, ends there. It only goes further when the words are ambiguous and require clarification, not when you don’t like the clear and unambiguous words, so you search further until you find some way to reach your desired outcome.

All the snark and ridicule doesn’t change the fact that the decision in King v. Burwell is, legally, wrong.  No matter how politically charged this case, the Affordable Care Act, may be, it was legally a fairly clear issue.  It just wasn’t very hard, as statutory interpretations go, and the blame for it falls not on anti-Obamacare partisans, but a Congress that did a lousy job of constructing a law, provided this wasn’t an intentional phrase to manipulate recalcitrant states into creating exchanges despite their not wanting to do so, as many contend.

But so what?  The Supremes have spoken, and while they are hardly infallible, they are certainly final.

The only issue, which returns this post to my wheelhouse, is whether the New York Times, Linda Greenhouse and the many deeply earnest voices will cry for the same method of statutory interpretation (ignore the words, focus on the feelz) when it comes to criminal laws that are similarly ill-conceived, poorly written and say things that don’t align with chapter titles.

Or on the other side, when there are specific words, phrases in laws that are used to show that a defendant’s conduct did not meet the elements of the offense, will these technicalities be called “preposterous,” will people cry about the purpose of the law to bring hated miscreants within its reach, and demand they be convicted anyway. Because it’s all about context, and the context is that we want a society where nothing bad ever happens to anyone. Except a defendant.

24 thoughts on “SCOTUSCare

  1. Ross

    I had almost this exact discussion with some self proclaimed progressives whose stance is that the “intent of Congress” is more important than the plain language of the statute. They seemed offended when I accused them of being more interested in outcomes than in what the actual law says. I am sad that I am no longer shocked by such attitudes.

    1. SHG Post author

      It’s perfectly fair, not to mention honest, to speak to the outcome-oriented policy results, but as a legal decision, this was a no-brainer.

        1. SHG Post author

          There are just too many ways to respond to this, ranging from don’t shoot heroin before breakfast to the more serious, but less fun, what the fuck.

          1. Fubar

            From my forthcoming treatise, Sunrise Prandial Peregrinations and Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970:

            I don’t know which is wilder or tamer,
            King v. Burwell or Shelley v. Kraemer.
            But, for breakfast, of course,
            Speed’s much better than Horse.
            “Wakes you up”, says the product disclaimer!

    2. BJC

      I kept asking my friends, “when it’s a choice between the (nonsensical and destructive) word of the law, or letting a judge just sort of make it up, which do you choose?”

      Most of them wanted to avoid the question, to pretend that one option or the other wasn’t as stark as I made it sound.

  2. Richard Kopf


    I respectfully disagree. Chief Justice Roberts decision was the correct one. He followed well understood canons of construction of an ambiguous statute.

    The word “an Exchange established by the State” are ambiguous. For example, if State X does not establish an Exchange the federal government following the same statute before the Court would step in and create an Exchange for the state. In either case, it is the decision of the state that triggers the creation of the Exchange. The words “by the State” are not surplus because they serve to exclude private business from establishing an Exchange.

    All the best.


    1. SHG Post author

      The words “by the State” are not surplus because they serve to exclude private business from establishing an Exchange.

      Or, for that matter, space aliens. Except if the words didn’t mean what the words say, Congress could have said what it meant, such as “an Exchange established by the state or federal government,” but it didn’t.

      Section 1311 of the Patient Protection and Affordable Care Act provides for the creation of an Exchange, and it does not allow for the creation of an Exchange by a non-governmental, whether private business or space aliens. So I’m just not seeing any ambiguity here.

  3. Peter Gerdes

    It’s seems like your reason for thinking King v. Burwel was wrongly decided is that you accept a version of the following principle: When the meaning of a clause in a statute is clear that meaning should control the interpretation no matter how unreasonable the consequence or how poorly it fits with the broad aims of the statue.

    So I ask how you felt about the interpretation of the statute (sorry I don’t remember the case cite) that specified (this may not be the exact wording) that “appeals must be failed no LESS than x days after a decision.” This statute was clearly and obviously passed to restrict the ability of convicts to appeal their sentence but the meaning of the clause is blindingly clear. Do you really think the courts should have thrown out appeals that were filed too quickly on the grounds that the relevant clause in the statute was unambiguous?

    If you don’t always go with the literal meaning of the words in the statute where is the appropriate place to draw the line?

    1. SHG Post author

      Every time I read one of your comments, I feel myself getting stupider. Lawyers have a thing we call “canons of statutory construction.” I’m pretty sure you are free to learn about them. Do so. Learn first what you’re talking about before making up a fantasy world in your own mind about what you think the law should be, and then asking me to fit into your fantasy paradigm. But asking me to indulge in your fantasy world of law as it should be in your mind is asking too much.

      Now go. Read. Learn. When you’re done, you will have your answer.

  4. David Ziff

    I’ll weigh in on the side of Judge Kopf (and avoid linking to myself). Two quick thoughts:

    1. The Chief’s opinion does not favor generalized “intent” or “purpose” over the text. Indeed, the entire Part II.A of his opinion, which concludes with him determining that the phrase is ambiguous, is based completely on the plain language of the statute. Only after that finding of ambiguity, in Part II.B and II.C of the opinion, does he look to more general structure, scheme, and context to derive legislative purpose as a way to *resolve* that textual ambiguity. Even Justice Scalia favors relying on legislative purpose. The key (as the Chief recognizes) is that a judge must divine that purpose from the text of the statute itself, its context, and its structure. That’s just what the Chief did.

    2. The question is not just whether “state means state.” Obviously, state means state. But section 1311 must be read together with section 1321. Imagine if 1321 read like this: “If the state does not establish an exchange, then the feds shall step in and create a fallback exchange, which shall operate just like a state exchange for all relevant purposes under the statute.” In that case, the meaning of “state” in section 1311 would not be the relevant question. Rather, the Court would ask whether the language of section 1311 should somehow thwart or negate the language of my imagined section 1321. The actual ACA could be read as a less clear, watered down, sloppily drafted version of my imagined 1321. But the effect is the same. So the question is not whether “state means state,” but how in the context of the statute do 1321 and 1311 work together.

      1. David Ziff

        Love the internal contradiction. And I’m not sure if I should be flattered or insulted. I’ll average them out and just go with feeling neutral.

  5. Gary Boatwright

    Allow me to suggest that courts rarely, if ever, strike down a statute based on a scrivner’s error. The factual issue before the court was whether or not what amounts to a scrivner’s error was sufficient to strike down the statute. Everything else is mere commentary.

    1. SHG Post author

      No one argued that this was a scrivener’s error. Had it been a scrivener’s error, it would have been easily corrected, and this would never would have gotten to the Supremes, but it was clearly not a scrivener’s error, which is why no one argued otherwise.

  6. Roger

    Since I think Justice Roberts’ opinion did exactly what a good judge should do when a sentence in a statute, in context, is ambiguous, I took your comment with more of a loaf than a grain of incredulity. Given your earlier post hating on the idea of Chevron deference in this case I thought you’d at least give the Justice a tummy rub for that part of the opinion.

    1. SHG Post author

      Since I didn’t, and don’t, accept the proposition that this was ambiguous, I can’t give him a tummy rub. If it was ambiguous (as the good Judge Kopf argues, and he’s a judge and far more knowledgeable and conservative than I), than his opinion would reflect very thoughtful statutory construction. But I just don’t see anything ambiguous about it.

      But bear in mind, that’s just my reading, and CJ Roberts is the Chief Judge of the United States Supreme Court. I, on the other hand, only preside here, so what difference does my opinion make?

  7. Marc R

    I don’t like the blanket “words don’t matter” refrain. CJ Roberts made it clear the principle used was words don’t exist in a vacuum. This was a few phrases inside a 1000 page statute. Those phrases can’t be defined without reference to the document itself.

    1311 and 1321 clearly refer to “states” as in the 50 states, but the phrase in question uses capitalized “State” with reference to the health department.

    State colloquially and legally can mean the particular jurisdiction bordered by other states or the State as the government. If you look at the Federalist Papers and social contract theorists before that the “state” meant government versus the people (and by extension private companies).

    While it’s ambiguous in the statute you don’t throw everything out. It’s not as if the words contradicted the statute; just those phrases on isolation weren’t clear. So CJ Roberts defined it as not relevant to each and every state but just non-private actors.

    And because public policy…desired ends but let’s not pretend he just tossed away contradictory language.

    1. SHG Post author

      As noted already, if it was ambiguous, then CJ Roberts’ point is well taken and a fine example of statutory construction. I just don’t buy that it was ambiguous.

  8. bacchys

    Given the outrage of many progressives when the CT Supreme Court correctly ruled a rapist had been charged under the wrong statute and voided his conviction, I don’t doubt they’ll approve when a court (even this Court) plays fast and loose in a way that meets their political approval.

  9. JD

    While King v. Burwell falls outside my wheelhouse
    Who cares? Whatever you write about, your critical analysis of the subject at hand is always great. Even when it contrasts with my feelz on the particular subject at hand. Any chance you will be writing about Obergefell et al v. Ohio Dept. of Health in the coming days?

    1. SHG Post author

      Nah. I long believed that same sex marriage was a done deal in this country, and the Court had no choice but to get on board. It’s time to put it to rest and let gays enjoy marriage just as much as the rest of us. Bwahahahaha.

  10. Sgt. Schultz

    It was my understanding that ambiguity is in the word “State,” where it is unclear whether it refers to one of the 50 states of the union, government as a generic entity or something else. I believe that is also what Judge Kopf is saying. While it may not be the most ambiguous of words, isn’t it sufficiently unclear to go to second level statutory construction, as did CJ Roberts?

    1. SHG Post author

      I understood that to be the ambiguity, but I still don’t see it. Had there been a definitional section in the statute that conflicted with the plain meaning, perhaps that would give rise to confusion, but it didn’t exist. Had the word “State” been used elsewhere in the statute to reflect an individual state or a generic governmental entity, so as to create confusion, that would have been sufficient. But it didn’t exist.

      It’s not that I don’t see the argument, but that I don’t see the ambiguity giving rise to resort to any canon of interpretation other than the facial, ordinary meaning of the words.

Comments are closed.