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.