November 11, 2014

Obamacare's defenders resort to low blows

By Ethan W. Blevins Attorney

“When I use a word,” Humpty Dumpty once said, “it means just what I choose it to mean–neither more nor less.” Congress lacks that luxury because the judiciary judges the meaning of its words. However, in a venomous New York Times article, Paul Krugman says that judges who try to rely on the plain language of Obamacare as it’s written are “corrupt, willing to pervert the law to serve political masters.”

The article highlights a legal controversy regarding Obamacare that the Supreme Court will soon address.  In  King v. Burwell and Halbig v. Burwell, federal judges have disagreed as to whether the Affordable Care Act allows tax credits under both state and federal health insurance exchanges. The law says that folks who enroll through “an Exchange established by the State” will get a tax credit. No one disputes that “the State” refers to any of the 50 states, not the federal government. Since many states don’t have exchanges, Obamacare’s success may hinge on whether people who enroll through a federal exchange can also get the tax credit.

The judicial debate has centered on the plain words of the law and its context. Reasonable minds disagree. To Paul Krugman, however, only a corrupt judge can actually think that “an Exchange established by the State” means only an exchange created by a state. “It’s a ridiculous claim,” Krugman says, “not only is it clear from everything else in the act that there was no intention to set such limits, you can ask the people who drafted the law what they intended, and it wasn’t what the plaintiffs claim.

But the kind of careful word analysis used by the judges who disagree with Krugman is the mainstay of our judicial system.  Representative government suffers when judges mold, stretch, or depart from text. “In despotic governments,” Montesquieu wrote, “the judge himself is his own rule . . . . In republics, the very nature of the constitution requires the judges to follow the letter of the law.” Congress makes the law–not courts. Judges stick to text in order to honor this separation of powers. To Krugman, though, this attempt at loyalty to the judicial role demonstrates “that partisan loyalty trumps respect for the rule of law.” I perceive the opposite.

Judges should apply the law as written even when the results seem odd or unintended. Judges are adjudicators, not editors. Here, Obamacare’s fans argue that it’s absurd to think that Congress intended to only subsidize folks who use state exchanges. But Congress, for better or worse, is allowed to do silly things. And if Congress did not mean what it said, judges apply its words anyway. As the Supreme Court has said, “It is up to Congress rather than the courts to fix . . . unintentional drafting gap[s].” Congress can always clarify by amendment.

Legal texts are not tea leaves. Judges don’t gaze into law books to divine what Congress really meant, regardless of what the law actually says. And unlike Humpty Dumpty, Congress must live with what it wrote–“neither more nor less.”

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