It's a Fool's Game

From Lewis Carroll, Through The Looking-Glass:

When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

’The question is,’ said Alice, ‘whether you can make words mean so many different things.’

’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”

The Supreme Court heard oral arguments today in King v. Burwell, a challenge to the provision of the Affordable Care Act that the Obama Administration has read to allow federal subsidies under the Act to purchasers of insurance enrolling in federally created exchanges in states which chose not to set up their own state-run exchanges (34 of them).

The challengers, recruited by conservative activists who hope to send the ACA into a "death spiral", may not even have standing, as came up today in oral argument. In any event, their theory of the case turns on reading the section subsidies will be provided through an "exchange established by the state" in isolation from the rest of the text, on the theory that it is the only operative language, and, as such, is unambiguous (and thus not warranting deference to the administrative interpretation that treats federally-created exchanges in such states as the functional equivalent of an exchange established by the state itself). In short: no subsidies for those receiving insurance through the federal exchanges.

Now, this is a question on which the conservative justices have not been silent. As I pointed out back in November, the dissenters in NFIB v. Sebelius, in an opinion by Justice Scalia, contrasted the Medicaid expansion provisions (deemed by them to be unconstitutionally coercive) with the federal exchanges at issue here:

If Congress had thought that States might actually refuse to go along with the expansion of Medicaid, Congress would surely have devised a backup scheme so that the most vulnerable groups in our society, those previously eligible for Medicaid, would not be left out in the cold. But nowhere in the over 900-page Act is such a scheme to be found. By contrast, because Congress thought that some States might decline federal funding for the operation ofa “health benefit exchange,” Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step inand operate an exchange in that State. See 42 U. S. C. §18041(c)(1). Likewise, knowing that States would not necessarily provide affordable health insurance for aliens lawfully present in the United States—because Medicaid does not require States to provide such coverage—Congress extended the availability of the new federal insurance subsidies to all aliens. See 26 U. S. C. §36B(c)(1)(B)(ii) (excepting from the income limit individuals who are “not eligible for the medicaid program . . . by reason of [their] alien status”). Congress did not make these subsidies available for citizens with incomes below the poverty level because Congress obviously assumed that they would be covered by Medicaid. If Congress had contemplated that some of these citizens would be left without Medicaid coverage as a result of a State’s withdrawal or expulsion from the program, Congress surely would have made them eligible for the tax subsidies provided for low-income aliens.

(Dissent sec. IV(E)(2)) (emphasis added))

Later in the opinion, in discussing severability, Justice Scalia's opinion--joined by Justices Thomas, Kennedy, and Alito--makes clear that the financial burden of the subsidies under the exchanges is a reason for finding the whole statute unconstitutional. The dissent does not suggest that federal exchanges are not encompassed in the universe of those receiving subsidies, which makes sense, because they would be ineffective as a "backup scheme" if such was the case.

So who's surprised that the conservatives will almost certainly read the statute in a manner clearly opposite to their dissent only three years ago?

At argument today, Justices Scalia and Alito were newly skeptical of the Administration's argument, with Scalia saying:

I mean it may not be the statute they intended. The question is whether it's the statute that they wrote. I mean, you know, there ­­ there ­­ there are no
provisions in the statute that turn out to be ill [-] ill­considered and ill ­­[-]ill­conceived.

. . . .

Is it not the case that if the only reasonable interpretation of a particular provision produces disastrous consequences in the rest of the statute, it nonetheless means what it says. Is that true or not?

(Tr. 45-47)

When the Solicitor General pointed out that that principle is delimited by the Court's duty to harmonize the provisions of a statute, Scalia replied:

Well, I disagree with that. You have a single case in which we have said the provision is not ambiguous, it means this thing, but, Lord, that would make a terrible statute, so we will interpret it to mean something else. Do you have one case where we've ever said that?

The Solicitor General did, in fact, have such a case. (Tr 48) Justice Scalia did not address it.

Likewise, Justice Alito:

Well, the puzzle that's created by ­­ by your interpretation is this: If Congress did not want the phrase "established by the State" to mean what that would normally be taken to mean, why did they use that language? Why didn't they use other formulations that appear elsewhere in the Act? Why didn't they say, "established under the Act"? Why didn't they say, "established within the State"? Why didn't they include a provision saying that an Exchange established by HHS is a State Exchange when they have a provision in there that does exactly that for the District of Columbia and for the territories? It says that they are deemed to be States for purposes of this Act.

(Tr. 60)

No wonder Laurence Tribe gave up halfway through writing a third edition of his seminal treatise on constitutional law; it was predicated on the notion that there was an actual good faith effort on the part of the justices to construe the legal instruments before them, and not to carve their own policy--or, worse, political, preferences into the law.

Bonnie Tyler may have been the more prescient legal commenter.