The Corner

The New York Times Inadvertently Makes a Strict Constructionist Case for Halbig/King

In today’s New York Times, Robert Pear has a piece on the impending King v. Burwell decision. And, as Ramesh notes below, it is inadvertently far more supportive of the challengers’ position than of the Obama administration’s.

At first blush, the Times appears to be following the government’s line of argument:

They are only four words in a 900-page law: “established by the state.”

But it is in the ambiguity of those four words in the Affordable Care Act that opponents found a path to challenge the law, all the way to the Supreme Court.

This idea — that the text of the statute is “ambiguous,” and that it should thus be resolved in favor of the federal government and not of the plaintiffs — is the one that the government’s lawyers have taken before the Supreme Court. Why? Well, because convincing a judge that a piece of plain text is the product of a good old-fashioned screw-up is extremely difficult in America — especially when the legislative history shows that the contested phrase was changed between drafts. Not being stupid, the Obama administration knows that it has a shot at winning an ambiguity-based case but that it has pretty much no chance of winning a this-was-a-typo case. So, smartly, it has elected to try the former. For two paragraphs at least, so did the New York Times.

But then it didn’t. Indeed, when you dig into the legislative history, the Times concluded, you will see no textual “ambiguity” at all. Rather, the problem at hand is that the statute is not what the drafters had hoped forPer Pear, the drafting error went down like this:

The idea of denying subsidies to people who bought insurance through the federal exchange “was never discussed,” said Charles M. Clapton, a lawyer who worked on both committees for Senator Michael B. Enzi, Republican of Wyoming. Mr. Clapton said he had difficulty accepting the argument advanced by the plaintiffs because it was “so contrary to the intent” of those who had written the legislation.

At the Finance Committee, which thrashed out its version of the bill in September and October 2009, senators initially assumed that all states would set up exchanges, so they added a section to the Internal Revenue Code to provide subsidies, in the form of tax credits, for insurance purchased through an exchange.

But senators and staff lawyers came to believe that some states — “five or 10 at the most” — would choose not to set up exchanges, said Christopher E. Condeluci, who was a staff lawyer for Republicans on the Finance Committee.

At that point, senators authorized a backup plan to allow the federal government to establish an exchange in any state that did not have its own, but they failed to include that language in the section of the tax code providing subsidies. “We failed to include a cross-reference to the federal exchange,” Mr. Condeluci said. “In my opinion, due to a drafting error, we overlooked it. It was an oversight. Congress, in my experience, always intended for the federal exchange to deliver subsidies.”

Arguendo, let’s suppose that this is all correct. (I’m not entirely convinced.) Doesn’t that mean that the plaintiffs are correct when they argue that the text is clear, not ambiguous? And, there being no textual ambiguity, doesn’t that mean that there is therefore no need to examine the legislative intent? (In other words, that Chevron stays on its first step?) And doesn’t that mean — heaven forefend — that the government’s promise that “established by the State” is a “statutory term of art” is . . . a lie?

After all, as the Times itself puts it, what matters here is not primarily what Congress wanted — or what might sound “fair” or represent a nice idea — but what Congress actually passed:

A powerful line of judicial thinking holds that courts do not have a license to disregard or revise the clear language of a law.

What matters, Justice Antonin Scalia has said, is “not what Congress would have wanted, but what Congress enacted.”

Ultimately, “what Congress enacted” was a law that did not enable the federal government to send subsidies through states that chose not to set up exchanges. Was that a “mistake,” the product of changing political circumstances? Maybe. Does that matter? Nope. From a historical or political perspective, it is certainly interesting to ask why the various proposals that made up Obamacare were smooshed together so incompetently. But such a question should be irrelevant to the Supreme Court. So Congress combined a couple of rushed and badly drafted bills, the product of which did not reflect the legislature’s updated wishes? Who cares? This is a nation of laws, not of nice ideas. What matters is the text. If the Times is to be believed, that text is clear. The Court’s decision should be, too.


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