Friday, June 26, 2015

Of Laws And Courts And Technicalities

     So...the Supremes upheld the Affordable Care Act* and my right-wingish friends are fuming, followed by many of the libertarian ones.  "OMG!," they emote, "It's become a government of men and not of laws!"

     But let's stop for a moment.  Assume this was a law you liked or better yet, were neutral about.  The plain intent was that it should work a certain way.  It's already caused hasty and sometimes unexpectedly costly rearrangements of health insurance for millions of Americans (under threat of fines!) and if the rug gets yanked out from under, that bids fair to create the same kind and scale of disruption all over again, mostly to the very same people -- people, generally, for whom even a little budgetary bobble can be a disaster.

     Now you be the Justice: here's a law that's written wrong.  The people who wrote it -- people you can call up on the phone or probably even go have drinks with after a long, hard day of Supreming (especially if you hang out with insurance lobbyists) -- are saying they slipped up, of course they meant to include the Federal fill-in for state exchanges in the part of the law at issue.  Meanwhile, opposition to the entire law, very much on party lines, wants the error to be read as given, in the expressed hope that it will lead the scuttling the entire law. You're the Justice; you have a choice that boils down to A) endorsing a partisian position that if it works as expected, will screw over millions of Americans who've been shafted once already or B) go with the original intent of the law instead of the sloppy drafting of it.

     Personally, I'm surprised the Court was able to muster three dissenting votes.

     Look, I dislike that law intensely, but taking it down via a technicality is cheating.  It's BS.  It's underhanded.  Yes, Washington abounds in underhanded BS and yes, individual (and corporate) defendants squeak by on "technicalities" all the time. --That government of laws rather than men is supposed to err on the side of letting the guilty go free rather than punishing the innocent: all justice is flawed and it must, therefore, be set up to err on the side that protects the innocent.  If you take keeping the workings of law from causing harm to the innocent as a goal, the Supreme Court did the right thing, galling though it is.

     Yeah, it sucks.  There's no magical gambit, no shortcut.  Don't like ACA?  Elect a President and a Congress with a clear mandate to fix that and have at it.  It's what the side that ran the blamed thing through did.
* And if you can't afford it, they'll fine "tax" your non-insuring self right into the poorhouse, 'cos that's compassionate and makes any damn kind of sense, right?


Joe said...

Except the architect of the law said repeatedly that the law was written to punish States that did not set up exchanges.

Roberta X said...

Cite? Also, punish "the state" in what way? The government of it, or the *citizens* residing therein?

Reason online did a piece that I had not seen when I wrote this, pointing out that the Court essentially went with maintaining the status quo.

Again: there's a legislative remedy. This was a legalistic ploy. It got very far but it did not succeed, in part because the Supreme Court is not composed of remorseless, implacable robots. Should it be? You tell me.

skidmark said...

Yes. Leave things the way they are until TPTB get their act together and rewrite the law so that people know what's in it before they pass it, and so that people know that the law was written that way because that was obviously what they meant it to be.

"We begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.:" Consumer Product Safety Commission et al. v. GTE Sylvania, Inc. et al.,447 U.S. 102 (1980). "[I]n interpreting a statute a court should always turn to one cardinal canon before all others. . . .[C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "when the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'" 503 U.S. 249, 254.

The failing was not that of SCOTUS but of Congress.

stay safe.

Jake (formerly Riposte3) said...

You make a valid point, but:

a) As skidmark notes, this ruling (much like the last big Obamacare ruling, actually) has essentially turned a core rule of the courts on its head. The court's place is to interpret a statute according to its actual wording, not the legislature's intent - even when that intent was clearly stated. Only when the wording is ambiguous should the courts look to the intent. In this case, the wording was clear.

b) Even if the wording of the section in question was an error, the proper remedy is for Congress to fix the wording, not for the courts to say "this is what they meant". Normally, the courts will specifically point this out, usually adding some language like "if that's what they meant, they were perfectly capable of saying so, so we have to go with what they actually wrote, and if what they wrote isn't right, it's up to them to fix it."

Murphy's Law said...

It's not the Court's place to rewrite poorly-written laws. Their job is to uphold or overturn it based on the language and the Constitution, and if a law is so badly written that it doesn't work, then they are supposed to overturn it and the legislature--the law-making body--can simply re-write it and pass it again.

What's wrong with sending it back for the lawmakers to re-wite and re-pass, other than the obvious point that the current elected legislature would never pass it?

Anonymous said...


Per your request, here a citation for that to which Joe referred:

As far as being a "legalistic ploy", are we not speaking of laws? Perhaps if we had not used the "you've got to read it to find out what's in it" method of law-writing, we could've hashed out small details like this beforehand. (I note without humor that the GOP has recently adopted the similar "you're not even going to get to know what's in it after we pass it" strategy of law-writing.)

It matters not whether I support the law or not. I would argue that "cheating" is operating the system in a manner not described by law. If you and I are held to the letter of the law, then why should Congress not held to the same standard?

The SC's was charged with interpreting the law. They neither used common definitions for words like "State", nor did they look at the author's intent. Rather, they changed the definitions of words to achieve a pre-ordained outcome, similar to when Roberts said a "fine" was actually a "tax."

As to compassion, the SC could've allowed the status quo for a certain time period (say, 'til the end of the year) in order for Congress to amend the legislation. This would've allowed some stability for markets and individuals until Congress made the next move.

With respect to Republicans being against Obamacare, I'm going to need to see some evidence of that. The Republicans would've attempted to fix Obamacare while making it look like they tried valiantly to get rid of it once and for all only to outwitted by those wascally Democwats.

Just my dos centavos. Warmest regards.

CMac said...

Actually I think the court ruled correctly this time, just with the wrong reasoning. "established by the state" to me clearly uses the definition of "state" that is synonymous with "government in general". If you wanted to specify that only the 50 U.S. state governments could establish exchanges it would have been "established by the states" - plural on the states. In the style of Madison or Jefferson it would have been "established by the various states". Or maybe if this section of the law is being written from another viewpoint you could write "established by their state" - with their referring to the person buying the insurance.
Actually how else would you word this phrase if you waned to mean that the exchange could be established by either the federal government, the state government, the District of Columbia government or maybe even the various territorial governments, Puerto Rico etc. except by the phrase "established by the state" or "established by any government" - which to me are legally the same, just using different synonyms.

What worries me is that I haven't seen this explanation anywhere, though I admit I try not to watch TV or listen to the radio, just depending on the newspapers and internet for my news. To me this is the simplest and easiest way to read that phrase - that none of our legal minds see it that way but insist on tortuous reasonings is very worrisome.

Unknown said...

Suppose 1/2 of the Democrats voting for this "law" intended only the state exchanges to be eligible for subsidies, and the othe 1/2 of the yes votes intended both federal and state exchanges to get the subsidies. How would an all knowing Supreme Court justice divine intent then?

The "Progressives" on the court made up this decision out of thin air, very thin air.

Jake (formerly Riposte3) said...

@CMac: If I understand it correctly (and I could very well be wrong), one key point made by the Plaintiffs was that "established by the state" was defined elsewhere in the law to specifically refer to the individual states, therefore it can't mean "government in general" elsewhere.

The reason so many people are surprised and upset is that using the specific definition given in the statute would likely cause the whole system to collapse, so the Court simply said "Well, they didn't mean for that to happen," and applied a definition contrary to the one given in the actual law (and, apparently, contrary to the drafter's intent, as stated on the record).