KHH1

A terrible precedent

By David B. Rivkin Jr. and Elizabeth Price Foley
INKINGvs. Burwell, the Supreme Court ruled that the Affordable Care Act permits individuals who purchase insurance on the federal exchange to receive taxpayer subsidies. Though the King decision pleases the ACA’s most ardent supporters, it undermines the rule of law, particularly the Constitution’s separation of powers.
Under Section 1401 of the ACA, tax credits are provided to individuals who purchase qualifying health insurance in an “exchange established by the State under Section 1311.” Section 1311 defines an exchange as a “governmental agency or nonprofit entity that is established by a State.”
As Justice Antonin Scalia’s dissent notes, one “would think the answer would be obvious” that pursuant to this clear language, subsidies are available only through state-established exchanges.
Yet the King majority ignored what the ACA actually says, in favor of what the Obama administration believes it ought to have said, effectively rewriting the language to read “exchange established by the State or federal government.”
Scalia observes that “words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’ ”
Like Humpty Dumpty in Lewis Carroll’s “Through the Looking Glass,” the majority claims that when the Supreme Court is asked to interpret a word, “it means just what [the court chooses] it to mean — neither more nor less.”
To reach the desired meaning, the King majority declared that “an exchange established by the State” was somehow ambiguous, enabling it to ignore the text and advance instead its vision of the ACA’s overarching purpose.
But the precedent upon which the court relied for this contextual interpretation, FDA vs. Brown and Williamson Tobacco Corp. (2000), involved a fundamentally different situation.
In that case, a group of tobacco manufacturers challenged the Food and Drug Administration’s authority to regulate tobacco products as “medical devices” or “drugs.” The court concluded that the words “device” and “drug” did not directly address tobacco and were consequently ambiguous.
The court looked beyond the Food, Drug and Cosmetic Act, or FFDCA, for contextual clues, discovering that Congress had subsequently passed several statutes allowing the continued sale of tobacco products, while regulating only their labeling and advertising.
This suggested to the justices that Congress did not intend tobacco to be regulated under the FFDCA as a drug or device.
In King, by contrast, there were no subsequent statutes providing clues about congressional intent; the only reliable evidence was contained in the act itself. So the majority adopted an entirely extra-textual approach, citing the law’s “purpose.”
That’s deeply problematic. Ascertaining a law’s purpose from evidence outside its text is virtually impossible, given that Congress consists of 535 members, each of whom is motivated by different purposes.
In the words of Palmer vs. Massachusetts (1939), contextual interpretation is a “subtle business, calling for great wariness lest what professes to be … attempted interpretation of legislation becomes legislation itself.”
This is exactly what happened in King: Attempted interpretation became legislation itself. By ignoring what the ACA actually says, in favor of what the King majority believes the statute ought to have said or what it thinks Congress meant to say, the court upset the entire constitutional balance.
The King majority acknowledged that the ACA is full of “in-artful drafting” and was written “behind closed doors, rather than through the traditional legislative process.” It also conceded that it was passed using unusual parliamentary procedures, and “[a]s a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.”
Despite all these flaws — both substantive and procedural — the majority felt compelled to save Congress, and the ACA, from its own foibles. Specifically, the King majority believed that applying the ACA’s plain meaning “would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very ‘death spirals’ that Congress designed the Act to avoid.”
Even if a loss of subsidies would have exacerbated the death spiral, courts are emphatically not in the law-writing business. Article I, Section 1 of the Constitution grants “all” lawmaking power to Congress,” not merely “some.” The job of the judiciary is to implement laws, warts and all.
When judges take it upon themselves to “fix” a law — or to bless an executive “fix” — they diminish political accountability by encouraging Congress to be sloppy. And they bypass the political process established by the Constitution’s separation of powers, arrogating to itself — and the executive — the power to amend legislation.
This leads to bad laws, bad policy outcomes and fosters the cynical belief that “law is politics.”
DAVID B. RIVKIN JR. is a constitutional litigator at
BakerHostetler who served in the Justice Department and the White House
Counsel’s Office in the
Reagan and George H.W.
Bush administrations.
ELIZABETH PRICE FOLEY is of counsel at BakerHostetler and a professor of constitutional law at Florida
International University
College of Law.

Loki Loc: Georgia

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So SCOTUS and the Democrats own the ACA, lock, stock, and barrel. How is this a favor? The Republicans don't really have a viable alternative that they are in lockstep with, as the Dems are with Obamacare. Now they are 'spared the necessity of coming up with one. The ACA is unpopular, and becoming more so. It will be an albatross around the Democrats' collective neck, although how large remains to be seen.
Whether you are Liberal or Conservative, the actions of the Court this week should give everyone pause. The pendulum will swing back the other way as it always does, and the happy camper Liberals will find the shoe on the other foot. The legislating from the Bench done by this Court, whether in favor of Conservative or Liberal causes, has set precedents that will bring lots of chickens of both political persuasions home to roost in the future. The myopes at both ends of the political spectrum had better realize that a victory today may bite your ass tomorrow.

KHH1

Yeah I hear you...look what their 2000 victory to W did to this country....destroyed it...put it in a tailspin with the closest thing to a full-scale depression since 1929....I guess they felt a need to save face...haha......... :thumbup: :roll: :lol:

Ricko Loc: Florida

KHH1-recovery had begun by the time BHO took over. His policies reversed the trend and for many people the recession is still here. This is the slowest recovery in decades and BHO is running the show. Good Luck America !!!!

KHH1

OH YEAH...RIGHT............. :roll: The recovery was supposed to be slow because this was as close to a depression that we had since 1929.........that is why it was called the GREAT RECESSION.........