A ter­ri­ble prece­dent

Los Angeles Times - - OPINION - By David B. Rivkin Jr. and El­iz­a­beth Price Fo­ley David B. Rivkin Jr. is a con­sti­tu­tional lit­i­ga­tor at Bak­erHostetler who served in the Jus­tice Depart­ment and the White House Coun­sel’s Of­fice in the Rea­gan and Ge­orge H. W. Bush ad­min­is­tra­tions. El­iz­a­beth

In King vs. Bur­well, the Supreme Court ruled that the Af­ford­able Care Act per­mits in­di­vid­u­als who pur­chase in­sur­ance on the fed­eral ex­change to re­ceive tax­payer sub­si­dies. Though the King de­ci­sion pleases the ACA’s most ar­dent sup­port­ers, it un­der­mines the rule of law, par­tic­u­larly the Con­sti­tu­tion’s sep­a­ra­tion of pow­ers.

Un­der Sec­tion 1401 of the ACA, tax cred­its are pro­vided to in­di­vid­u­als who pur­chase qual­i­fy­ing health in­sur­ance in an “ex­change es­tab­lished by the State un­der Sec­tion 1311.” Sec­tion 1311 de­fines an ex­change as a “gov­ern­men­tal agency or non­profit en­tity that is es­tab­lished by a State.”

As Jus­tice An­tonin Scalia’s dis­sent notes, one “would think the an­swer would be ob­vi­ous” that pur­suant to this clear lan­guage, sub­si­dies are avail­able only through state- es­tab­lished ex­changes.

Yet the King ma­jor­ity ig­nored what the ACA ac­tu­ally says, in fa­vor of what the Obama ad­min­is­tra­tion be­lieves it ought to have said, ef­fec­tively rewrit­ing the lan­guage to read “ex­change es­tab­lished by the State or fed­eral gov­ern­ment.”

Scalia ob­serves that “words no longer have mean­ing if an Ex­change that is not es­tab­lished by a State is ‘ es­tab­lished by the State.’ ”

Like Humpty Dumpty in Lewis Car­roll’s “Through the Look­ing Glass,” the ma­jor­ity claims that when the Supreme Court is asked to in­ter­pret a word, “it means just what [ the court chooses] it to mean — nei­ther more nor less.”

To reach the de­sired mean­ing, the King ma­jor­ity de­clared that “an ex­change es­tab­lished by the State” was some­how am­bigu­ous, en­abling it to ig­nore the text and ad­vance in­stead its vi­sion of the ACA’s over­ar­ch­ing pur­pose.

But the prece­dent upon which the court re­lied for this con­tex­tual in­ter­pre­ta­tion, FDA vs. Brown and Wil­liamson To­bacco Corp. ( 2000), in­volved a fun­da­men­tally dif­fer­ent sit­u­a­tion.

In that case, a group of to­bacco man­u­fac­tur­ers chal­lenged the Food and Drug Ad­min­is­tra­tion’s au­thor­ity to reg­u­late to­bacco prod­ucts as “med­i­cal de­vices” or “drugs.” The court con­cluded that the words “de­vice” and “drug” did not di­rectly ad­dress to­bacco and were con­se­quently am­bigu­ous.

The court looked be­yond the Food, Drug and Cos­metic Act, or FFDCA, for con­tex­tual clues, dis­cov­er­ing that Congress had sub­se­quently passed sev­eral statutes al­low­ing the con­tin­ued sale of to­bacco prod­ucts, while reg­u­lat­ing only their la­bel­ing and advertising.

This sug­gested to the jus­tices that Congress did not in­tend to­bacco to be reg­u­lated un­der the FFDCA as a drug or de­vice.

In King, by con­trast, there were no sub­se­quent statutes pro­vid­ing clues about con­gres- sional in­tent; the only re­li­able ev­i­dence was con­tained in the act it­self. So the ma­jor­ity adopted an en­tirely ex­tra- tex­tual ap­proach, cit­ing the law’s “pur­pose.”

That’s deeply prob­lem­atic. As­cer­tain­ing a law’s pur­pose from ev­i­dence out­side its text is vir­tu­ally im­pos­si­ble, given that Congress con­sists of 535 mem­bers, each of whom is mo­ti­vated by dif­fer­ent pur­poses.

In the words of Palmer vs. Mas­sachusetts ( 1939), con­tex­tual in­ter­pre­ta­tion is a “sub­tle busi­ness, call­ing for great wari­ness lest what pro­fesses to be … at­tempted in­ter­pre­ta­tion of leg­is­la­tion be­comes leg­is­la­tion it­self.”

This is ex­actly what hap­pened in King: At­tempted in­ter­pre­ta­tion be­came leg­is­la­tion it­self. By ig­nor­ing what the ACA ac­tu­ally says, in fa­vor of what the King ma­jor­ity be­lieves the statute ought to have said or what it thinks Congress meant to say, the court up­set the en­tire con­sti­tu­tional bal­ance.

The King ma­jor­ity ac­knowl­edged that the ACA is full of “inart­ful draft­ing” and was writ­ten “be­hind closed doors, rather than through the tra­di­tional leg­isla­tive process.” It also con­ceded that it was passed us­ing un­usual par­lia­men­tary pro­ce­dures, and “[ a]s a re­sult, the Act does not ref lect the type of care and de­lib­er­a­tion that one might ex­pect of such sig­nif­i­cant leg­is­la­tion.”

De­spite all these f laws — both sub­stan­tive and pro­ce­dural — the ma­jor­ity felt com­pelled to save Congress, and the ACA, from its own foibles. Specif­i­cally, the King ma­jor­ity be­lieved that ap­ply­ing the ACA’s plain mean­ing “would desta­bi­lize the in­di­vid­ual in­sur­ance mar­ket in any State with a Fed­eral Ex­change, and likely cre­ate the very ‘ death spi­rals’ that Congress de­signed the Act to avoid.”

Even if a loss of sub­si­dies would have ex­ac­er­bated the death spi­ral, courts are em­phat­i­cally not in the law- writ­ing busi­ness. Ar­ti­cle I, Sec­tion 1 of the Con­sti­tu­tion grants “all” law­mak­ing power to Congress,” not merely “some.” The job of the ju­di­ciary is to im­ple­ment laws, warts and all.

When judges take it upon them­selves to “fix” a law — or to bless an ex­ec­u­tive “fix” — they di­min­ish po­lit­i­cal ac­count­abil­ity by en­cour­ag­ing Congress to be sloppy. And they by­pass the po­lit­i­cal process es­tab­lished by the Con­sti­tu­tion’s sep­a­ra­tion of pow­ers, ar­ro­gat­ing to it­self — and the ex­ec­u­tive — the power to amend leg­is­la­tion.

This leads to bad laws, bad pol­icy out­comes and fos­ters the cyn­i­cal belief that “law is pol­i­tics.”

Bren­dan Smi­alowski AFP/ Getty I mages

SUP­PORT­ERS OF the Af­forable Care Act rally Thurs­day out­side the U. S. Supreme Court.

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