Obamacare Decision Harbinger?

“Our job is to follow the text even if doing so will supposedly undercut a basic objective of the statute,” says a five-Justice majority in Baker Botts v. ASARCO, LLC, slip op. at 13 (quoting from the dissent!). Justice Sotomayor concurred in the opinion — except as to that section. Breyer, Ginsburg, and Kagan dissented.

Is this an indication of the likely result in King v. Burwell, the Obamacare decision due in the next few days? That case turns on whether to read one line out of context of the rest of the statute. (Non-jargony summary of the issues here.)

Justice Kennedy, the swing vote, signed on to the formalist view in yesterday’s bankruptcy decision. On the other hand, there was less evidence that Congress intended to let the Bankruptcy bar bill for defending fee petitions than there is about the intentions of Congress in the Affordable Care Act — if, that is, you are willing to read beyond the clause at issue.

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16 Responses to Obamacare Decision Harbinger?

  1. Vic says:

    Even if we agree that it’s not conceivable that the statute was written intentionally as interpreted by the Plaintiffs, how is this SCOTUS’ problem to fix? Seriously. It’s bad enough that the Court effectively legislates (for both sides of the aisle) as often as it does, which is not even remotely it’s Constitutional job, but for it to “fix” the law would be a long overreach of its mandate.

    The reason the Administration wants the Court to do this is because it can’t.

    The reason Congress wants SCOTUS to step in is because it’s ABC Rule (always be campaigning) mandates that it write vague laws that can be used for grandstanding purposes for as long as it takes some adult to come in and “fix” it and take away all the fun. Congress can’t fix it because nobody wanst their vote tied to ANYTHING even remotely controversial – especially after the housecleaning this brought about when passed.

    The real problem here is that Congress has passed a law that couldn’t POSSIBLY be not error-filled at 2000 pages or so. The real problem is that we have a system of Congressional corruption that makes it possible to write 2000 page laws that are filled with every wish-list item the winning side can toss in. It is INEVITABLE that big chunk of this law contain surprises, are unconstitutional in some way, are internally contradictory, and every other possible wrong. But Congress threw up its collective hands on the matter and tossed it over to the Supreme Court to fix.

    It’s bad enough this was passed by an unconstitutional Congressional switch-a-roo, now we are going to have the Court legislate a correction to it?

    The whole thing is a farce, and the fact that people will spend so much time arguing about the nature of it as if it deserves any respect at all, just shows how screwed up the system that put it into place has become. (I think at the very least it is reasonable that any law complex enough to actually need 2000 pages to express MUST have bi-partisan and continuing supermajority support – neither of which is true here.) This thing is just not good Government.

    • Doctrinally, there is quite a lot of law that recognizes the concept of scrivener’s error. In the real world, Congress inevitably will make drafting errors. In those cases where it’s clear what the general purpose of the statute was, and that the text as written is *unintentionally* inconsistent with that intent, the courts have for 100+ years had no trouble cleaning it up. (The key word is *unintentionally*.)

      Thus, a line of cases dating from, yes, Church of the Holy Trinity, that allow this sort of correction. It is nothing new. Even Scalia admits that juducial correction of scrivener’s error can be appropriate. See X-Citement Video
      Inc. https://www.law.cornell.edu/supct/html/93-723.ZD.html .

      This is just normal.

      • Vic says:

        With respect, I think you are trivializing the nature of the error. And Congress has had plenty of time to do a routine correction (like they do all the time) if that’s all it was. It could be too late for that now with the GOP in charge, but they had plenty of time while the Dems were in charge, and didn’t bother. I really don’t think that’s accurate, even if it’s what’s claimed now for self-evident reasons.

        From the case you cited: “For the sine qua non of any “scrivener’s error” doctrine, it seems to me, is that the meaning genuinely intended but inadequately expressed must be absolutely clear; otherwise we might be rewriting the statute rather than correcting a technical mistake.”

        Scalia is referring to the idea of correcting a meaning of a word, not creating one. “Even if I were willing to stretch that doctrine so as to give the problematic text a meaning it cannot possibly bear…”

        Look, we can argue THAT point all day, but it’s not the important one, which I made in my original post. SCOTUS should not and CAN NOT be in the business of amending acts of Congress, only determining if they are legal/Constitutional. WHATEVER you might feel about the nature of these words, for SCOTUS to “fix” it would be an act of legislation. I think it is inherently dangerous to allow the Court of legislate on something, just because you happen to agree on it, because one day, you won’t, but they’ll have the power anyway. And while actions of SCOTUS are by definition legal, since they can’t really be ignored, we should be all that much more carfeul about giving the Court leeway that it does not Constitutionally have, even if it claims it.

        It’s Congress’ job to fix this. No one else’s. If it “can’t” be fixed for whatever reason now, then that’s part of our system as well. maybe they shouldn’t have passed such an unwieldy beast in the first place if it couldn’t stand scrutiny and was only meant to appeal to populism.

        • I am perplexed. I thought courts were charged with “interpreting” statutes. (A related, but not quite identical term is “construing” statutes.) There does of course come a point where we say Courts have not done so with fidelity–and then we trot out the epithet “legislating”. Everyone agrees that when courts read into statutes that which congress did not intend, this is a bad thing. But the perplexing part is why that claim fits here?

          I am and have always been of the school that says courts should try to give life to the “purpose” of a statute. i do so understanding that the task of “understanding the purpose of a statute” requires we delve into Congressional “intent” which is more than a bit of a legal fiction when speaking of a collective body. But even so, that’s what I see the court’s job to be, on the grounds that alternate interpretative strategies are worse both in theory and practice.

          The account you offer above is deeply formalist. As far as I can see it really doesn’t care about Congressional ‘intent’ at all. Perhaps this is because you believe (as one certainly can) that Congressional intent either is not knowable or is too manipulable a concept to trust courts to deploy fairly. But as I see it, you view assumes that the proper interpretation or construction of a single line in a very large and complex bill is what that iine would mean when viewed on its own, out-of-context, rather than what that line means in the greater context of the whole.

          This is not to say that Congress can’t make exceptions to a complex rule, even seemingly irrational ones. It of course can. But here there is no claim that I have seen which explains why Congress would do this, nor any serious claim that Congress in fact intended to do this. All the evidence is the reverse. Sounds like drafting error to me.

          For me, the epithet “legislating” isn’t simply about whether one adds a word, subtracts a word, or tortures the meaning of a word, although all those can be “legislating” in some cases. It’s about whether one is faithful to what the legislature wanted. That doesn’t seem hard here at all.

          I often teach Lon Fuller’s “The Case of the Speluncean Explorers”. How would you rule in that?

          • Vic says:

            The issue is where the line is between interpreting and creating the operation of a statute. There HAS to come a point where a Court simply doesn’t have the mandate to fix a broken statute – even if it is OBVIOUS what is wrong with it. It is not the job of the judicial branch to “fix” things, even if all too often it does, thus causing some to think that’s its everyday job.

            We may differ on this point, but I think that the “fix” in this case is a major change to the functioning of the statute, even if it is only four words. This directly affects the people in what, 38 states? This isn’t a spelling error, or a numbering error, or some clearly obvious misuse of a word, or confusion of a word. It IS entirely conceivable that Congress intended exactly what was written, even if those that voted for the Bill deny it now. (And remember that the Bill, as it was enacted into law was neither the same in both houses (arguably unconstitutional in its own right), nor could have actually BEEN read by anyone (because of time strictures). So what Congress says NOW about the whole thing is largely meaningless.) This act was passed in such a hurry and with such secrecy and legislative gaming that we cannot say WHAT was actually intended and what was not. This is the inherent problem with a 2000 page law that nobody could read and everybody could put pet ideas into. The very nature of the law is flawed, to be shocked about it now is like being shocked at the gambling in Casablanca.

            And as you know from Admin law, it is certainly not the Executive branch’s mandate to start enacting missing parts – whether they “make sense” or not.

            I think it is very dangerous to expect a Court to fix things that seem obviously necessary, just because they are. This was perhaps a drafting error, but it is also conceivably a mistake or an intentional action. We don’t know for sure. The Court doesn’t know for sure. This is a text book example of the Court legislating, if they add the four words.

            While I am vaguely familiar with the spelunking case, I just don’t have the time to give it a real reading and real debate.

            • I think one core issue of difference is that I 100% disagree with this claim of yours: It IS entirely conceivable that Congress intended exactly what was written, even if those that voted for the Bill deny it now.

              All of the contemporary evidence is otherwise, not just current testimony. That is why I see this as an easy case.

              • Vic says:

                Well, I just don’t know. Some people obviously claim there IS evidence to the contrary – I don’t have time to mess with it now.

                HOWEVER, one of my points really is that it was intended simply because it was intentionally mis-written. It was rushed through and passed without careful consideration or even a proper Constitutional vote, so, in that sense, they got EXACTLY what they intended.

                I think the argument is easy to make that if they intended those four words they put everywhere else, they could have put them there. It’s not like they made this mistake everywhere.

                Fact is, it was likely just incompetence and being rushed. I don’t think, as I’ve said, it’s SCOTUS’s mandate to save Congress from it’s own sucking wind.

              • Vic says:

                A brief thought or two:

                The idea that the Federal Government, which cannot demand the States do anything, would employ a carrot and stick approach to get the States to implement their own exchanges is hardly groundbreaking. This happens all the time. I would not say that it is any evidence at all to say that the Feds would never want to exclude anyone from subsidies, unless their State created an exchange. This is how our Federal system works.

                Second, how much can anyone really say about Congressional intent when everyone that seemed to be at the core of this has already admitted they didn’t read it before enacting it? Sen. Nelson, from our State, has admitted as such, while claiming that Federal subsidies were important to him.

                So what if Sen. X wanted subsidies on the Federal exchanges when the Bill was being written? It seems to me that each of them dropped the ball completely when it came time to actually pass it (putting aside again that it wasn’t even passed Constitutionally).

                As a simplistic hypothetical: Congress debates passing a law to make eating ice cream illegal. “They” write a 2000 page ice cream law that none of them bother reading. When it comes out, it is discovered that it only outlaws gellato, but not ice cream.

                Does intent really matter here? Even if we ALL agree that Congress had a clear intent? They dropped the ball in their zeal to get the law passed and didn’t actually read it and make sure it DID what they intended.

                Whose responsibility is it to fix that? I’d say it’s Congress’, even if that means that the later Congress would never pass such a law – they start over from square one.

                This was the result of Congressional negligence, why should their intent, whatever it was, have any bearing? Part of their JOB is to ensure that to the best of their ability they make an informed vote. They didn’t do that.

          • Vic says:

            I would add that I think it is wrong to confuse the decisions of the Supreme Court with being correct. In many, if not most, cases, they will be. But it is not always the case, and they are as prone to being political, having biases and agendas, as any other Governmental body. Just because what they pronounce becomes the law of the land in a sense, does not mean they are correct.

            If anything, I think that should give MORE pause to allowing them to “fix” broken things.

            • Would you read the recent renewal of the Patriot Act as a renewal, or a mistake with lots of parts that don’t do anything? It assumes the old act is in force, but was passed 3 days after it died, so technically large parts amend things that don’t exist. Cf. http://justsecurity.org/23458/usa-freedom-act-amend/ and http://justsecurity.org/24053/hidden-meaning-maybe-fisc-opinion/

              • Vic says:

                I haven’t seen it and don’t have time at the moment even to look at your link, but I think the Patriot Act generally is a pandering, politicised masterpiece of Congressional corruption that has effect solely because it used the magic phrase “national security.” I don’t believe it to be remotely Constitutional (while I paradoxically believe that our Constitution was never meant for some of these situations anyway).

                I one sense, I don’t even care to debate the propriety of it’s successor because there’s just no way it is any better anyway – nor will anyone have any power to do anything about it. You might disagree, but I just toss my hands up in surrender over this sort of thing.

          • Vic says:

            in a fit of insomnia, I read the Speluncean “opinion.”

            Interesting read, but just that. The juxtaposed individual judges are simply taking various stands, as expressed at the end, that demonstrate different ways of looking at the problem, resolving nothing in the process.

            This is an academic exercise, more analogous as to WHY Obamacare is a mess, than the resolution of any issues within it.

            It also demonstrates quite clearly for the layperson why lawyers have made such an self-serving mess of Government, and why so many of them can’t see the mess they’ve made, but insist it’s all for a greater good and that society has been bettered for it. (and I am a lawyer) These judges wrote Obamacare, and it’s not at all unclear why it can’t be fixed.

            • I think you missed the point? Of course it’s an academic exercise: The idea is to have you interrogate your own commitments. Either you agree with one of the opinions, or you have some other theory … or you just go with your gut. The point is to get you to articulate which it is and why.

              Judicial interpretation is not the mechanistic thing you wish to make it, and the essay helps illustrate why that is a good thing.

              • Vic says:

                Well, I GOT that is was an exercise (I said that, didn’t I? maybe I was sounding too sarcastic?).

                I just thought the whole thing to be perfectly analogous to Obamacare in that it mirrored the mess of purposes and interpretation that IS the ACA and also our legal system. It’s a bubble of legal jargon unrelated to any real thing, but pretending to be so that people take it seriously.

                There can never be an answer to the Speluncean case, just as there is never really an answer to lots of human problems that are purposefully complicated by their makers. It was DESIGNED to be indefinite.

                I’d toss ideas with you at length in a class or over a beer, but I’m not even going to pretend that this matters in a discussion of the ACA here. C’mon…

              • But, but, but…in the real world judges don’t get to throw up their hands and not decide. Indeed, not deciding is always a decision as there is always a status quo.

                So there *HAS* to be a (judicial) answer in this case, just as there has to be one in the ACA case. You appear to want to decide at least the latter on a certain kind of formalism: read a small text in a large complex statutory scheme without much concern for the context (or for whether it’s an unconstitutional result, triggering an avoidance canon of construction). That’s an intellectual cheat. It’s not below the low standards of pols on the stump, but it less than we can fairly ask of lawyers.

                And I’m completely lost by how you can assert that one’s theory of the correct method of reading statutes isn’t relevant to the ACA case. It’s the whole issue (since I think the facts are not in dispute).

  2. Vic says:

    OK then.

    My initial reaction is that the Spelunkers should be convicted for premeditated murder – whatever their fear and desperation might have been, they definitely committed murder, and it was definitely premeditated. It was not done in self-defense (as that term is normally used in such cases), and duress is not a defense to murder. Nor was this the result of an accident, recklessness or negligence. It was a killing undertaken to satisfy a personal desire to kill another. I really don’t find this to be all that controversial or difficult a result.

    I would agree that there are elements of the story which cause sympathy with the predicament, maybe even a desire that there was a way out of finding for premeditated murder, or that someone “the executive” would come in after the fact and do something (I would not agree with that), but with the law as it apparently was, and analogizing from our actual law, premeditated murder is proper and fully defensible.

    Anything else in that “opinion” is just great fluff to fill out a law school class and cause students to ponder different ideas. In an ACTUAL court, I’d be surprised if any of it took place.

    BTW, I’d have to look at it again, but I don’t recall any great debates about the meaning of the murder statute (like you’d find in the “No Vehicles In The Park” sign debates), just lots of moralizing on what SHOULD be and invoking ideas outside of the law. I don’t see this at all analogous to the ACA problem, except in it’s over-thinking a problem.

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