Prof. Julius Cohen taught Legislation in my first semester in law school. Surprisingly the subject went into disfavor in later years, only to be revived recently. We learned canons of construction. Among the first was to construe a law not literally but so as to effectuate the legislators' intent. That rule had its origins in the seventeenth century when the Parliament raised the New Model Army and went to war against the Royalists, culminating in parliamentary supremacy with the Glorious Revolution of 1688.
Our Constitution sought to diffuse power, creating an often dysfunctional system. In the 1930's the Supreme Court found in Congress's power to regulate commerce among the states the power to overcome the small government view of federalism that James Madison and the much overrated Thomas Jefferson heralded. Babbit-like resentment of the costs imposed by federal regulation have been a cornerstone of modern conservatism. It has led them to embrace state's rights and a sharply limited view of the Supreme Court's powers. But as conservative ideological preeminence grew in the past forty five years the denunciation of "judicial activism" became a ritual cry but not an operating principal.
When the Affordable Care Act became law conservatives saw an opportunity to undermine the commerce clause jurisprudence which is the jurisprudential foundation of the modern regulatory state. In 2011 they came very close to a win in Sebelius v. National Federation of Independent Businesses. Five justices, including the Chief Justice,concluded that the ACA was not authorized under the commerce clause. "Obamacare" was saved by C.J. John Roberts opinion that the tax power authorized the insurance requirement.
When King v. Burwell was accepted by the Supreme Court the entire legislative structure was put at risk - over what appeared to be a drafting error. But there is little more appealing to a lawyer than the words of a statute. And here the words called for an "exchange established by the State" as the portal through which federal health insurance tax credit subsidies would be allocated. The justices faced the question: what will prevail: the words of the provision or an expansive, saving construction of the entire Act, whose sprawling 2000 pages sent a general message that Congress's intent was to subsidize health insurance for low and moderate wage earners. The dilemma for (it proved) Justices Roberts and Kennedy was that construction of the phrase in context meant a green light for a law the structure of which was unconstitutional, in their view. Construing Congressional intent requires discipline of the judge because today's Congress is led by men who have voted dozens of times to repeal the entire ACA.
Such a choice is inevitably driven by the jurist's view of the desirable outcome. But that view is a broad one. There are competing canons of construction: the literal approach and the overall purpose approach. A judge may consider the impact of a decision, not just adherence to the canon of construction that one must be bound by the words of the statute. Searching for implied intent is an invitation to abandon the words, and seek one's own preferred meaning. In Justice Scalia's view that is what the majority has done. The ACA should be called "Scotuscare" now he cried. Antonin Scalia certainly knows how to coin a word. But his ability to govern is suspect. The wisdom of the King V. Burwell majority's ruling in my view is that deference to legislation requires recognition of drafting failures, and an appreciation that a major regulatory measure like the ACA creates new classes of expectations - such as the expectation of millions that their health insurance will continue to be made affordable thanks to public largess. - gwc
Supreme Court Allows Nationwide Health Care Subsidies - The New York Times
by Adam Liptak
The question in the case, King v. Burwell, No. 14-114, was what to make of a phrase in the law that seems to say the subsidies are available only to people buying insurance on “an exchange established by the state.”
Chief Justice Roberts wrote that the words must be understood as part of a larger statutory plan.
“In this instance,” he wrote, “the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” he added. “If at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.”