Jiggery-pokery

Ever since reading David Cole’s compelling account of the legal issues at stake in King v. Burwell, I've had trouble imagining how any intelligent and intellectually honorable person could support the plaintiffs in this case. So, being stuck at home with a bad cold on the day the Supreme Court announced its ruling, I wandered over to the website of the National Review in search of intelligent, intellectually honorable rebuttals of the majority opinion.

Sure enough, two intelligent men, Yuval Levin and George Will, were both arguing, with as much drama as they could muster, not only that John Roberts and the others Justices in the majority were wrong, but that their decision was a precedent that would do lasting damage to America’s Constitutional tradition. According to Levin and Will, the majority’s interpretation of a disputed provision in the Affordable Care Act was, in effect, an attempt by judges to revise badly written legislation in order to rescue it from its internal contradictions. Yet another example of judicial overreach, about which conservatives are forever complaining (and sometimes with good reason). Here’s Levin:

While [the majority decision] would seem to suggest that the will of the legislator should guide the system, in fact it means that the word of the legislator does not govern the other branches. It implies that Congress should have just passed a law that said “health insurance markets shall be improved,” and then left it to the executive agencies to decide how they wish to do that while judges nod in approval.[…]

Members of Congress express their will through the particulars of the legislation they craft and enact, and when those particulars are flawed, contradictory, counterproductive, or misguided (and they are all of those things in this case) our system does not expect judges to provide the words of the statue with different meanings based on their own assessments of how the vague, broadly stated goals of the legislators might have been better achieved.

Will concurs:

[Roberts] adopts a legislator’s role in order to rescue the legislature’s plan from the consequences of the legislature’s dubious decisions. By blurring, to the point of erasure, constitutional boundaries, he damages all institutions, not least his court.

In short, not only did the Supreme Court fail once again to deliver the country from the evils of Obamacare, it also encouraged meddlesome Justices to give incompetent legislators an unfair boost rather than holding them responsible for their incompetence. The decision thereby undermines our whole system of checks and balances. This, not incidentally, is pretty much what Justice Scalia argues in his dissenting opinion. The American people, he writes, “made Congress, not this Court, responsible for both making laws and mending them.”

This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct.

According to Scalia, the majority’s willingness to disregard the plain meaning of an inconvenient phrase in order to keep Obamacare afloat amounts to “interpretive jiggery-pokery” and “pure applesauce.” The man does have a way with words.

So, is there anything to this argument? Did the Supreme Court, approving Congress’s general intention to improve our health-care system, arrogate to itself, in defiance of the Constitution, Congress’s power to write a health-care law that would actually work?

I’m not a lawyer, but you don’t need legal training to spot a flaw in this argument. It is a text-book example of the fallacy of the excluded middle. Scalia, Will, and Levin all suggest that either the Supreme Court Justices can pay strict attention to the literal meaning of each phrase of the Affordable Care Act, in disregard of its context and the record of what was said by those who wrote the law or voted for it—or Justices can just rewrite the legislation in any way they please to make it serve whatever vague purpose inspired it. Those are the only two options.

Well, they’re not. There is an important—and, I'd have thought, obvious—difference between a judge effectively rewriting a law in order to make it achieve its intended social effect and a judge reading the details of a law in light of its overall design. Of course good intentions on the part of lawmakers do not ensure a good or Constitutional law. But wherever different interpretations of a law are possible, a judge should not ignore the intentions of the legislators who supported it.

Both the Congressional record and the text of the Affordable Care Act make it abundantly clear that those who voted for the law intended to make it possible—which means affordable—for any American not otherwise covered to buy a health-insurance policy on an individual exchange. It is therefore all but inconceivable that lawmakers meant to deprive those who get insurance through a federal exchange of tax subsidies available to those who get it through a state-run exchange. The six Justices in the majority recognized this and interpreted the law accordingly. Their decision is not “jiggery-pokery” but rather a good-faith effort to discover how the law was meant to work, and then to let it work instead of sabotaging it with the unreasonable demand that its 906 pages contain no clerical errors, oversights, or ambiguities.

King v. Burwell was a nuisance lawsuit brought by ideologues who regard the federal government as a nuisance and markets as the solution to every problem. Ultimately, a majority of the Justices did the right thing in rejecting this effort to make mischief, but this was a case that never should have made it to the Supreme Court in the first place. Scalia et al are right that it isn’t the Justices' job to write or rewrite legislation, but the Court has better things to do than make sure every statutory i is dotted. Conservatives will have to win their fight against Obamacare the same way they lost it: democratically.

Matthew Boudway is senior editor of Commonweal.

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