It’s a Bird. It’s a Plane. No, It’s SCOTUS!!

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In a 6:3 decision, SCOTUS rescued Obamacare once again. Obamacare, untouched by Donald Trump and the Anti-Death Panelists, was almost brought to its knees by a single word; a lowly, miserable, reclusive preposition – “by”.

A brief summary.

Obamacare helps low income families buy health insurance through subsidies doled out by the Internal Revenue Service (IRS). Health insurance is sold at online marketplaces called exchanges. The online exchanges have been created by the state or the federal government. The statutes say that subsidies are available for insurance bought “through an exchange established by the state.”

The plaintiffs in King v. Burwell alleged that the IRS was illegally subsidizing people in over thirty states where the federal government, not the state, established the online exchanges.

The administration claimed that the subsidies applied in all states. That the language was admittedly sloppy and “by the state” also meant “by the federal government.” The country is now so polarized that even prepositions must take sides.

SCOTUS agreed. Interpretation must yield to context – aka common sense. And the context was the law’s obvious goal which is to insure as many people as possible.

King v. Burwell took pettifoggery to a new level. But this was not a war of words. This is an ongoing war between two worlds which disagree about the role of government in healthcare. One world clings to self-reliance and the other wants more government. Both underestimate the angst they cause the other.

David King, the lead plaintiff, is a rugged individual, who would never use Obamacare, out of principle. So he says. Presently 64, King will soon be eligible for Medicare, the generous government single payer, which covers unlimited medical services from middle age to grave for both conservatives and liberals. Time will tell if King’s principles stop him from using Medicare.

SCOTUS not only rescued millions of low income people who would not have bought insurance had the subsidies been declared illegal. SCOTUS not only rescued the insurance market, which relies on minimum participation, and would have collapsed. SCOTUS not only rescued the IRS. SCOTUS not only rescued Obamacare. SCOTUS rescued the Republicans as well.

“It’s a bird….It’s a plane….No. It’s SCOTUS.”

SCOTUS rescued the Republicans from the angry mobs who would have had their subsidies rescinded. SCOTUS has given the Republicans more time to think of an alternative to Obamacare.

To be fair to the Republicans, this suit was not engineered by them but conservative scholars and think tanks. Cato is one such libertarian organization, known for scholarly consistency and metronomic logic. The logic, so often aesthetically pleasing, does get painfully tedious at times.

Amongst others, the lawsuit was the intellectual product of Michael Cannon, a Cato scholar. Cannon emphasizes that he is libertarian, not a Republican, and that he opposes Obamacare, not because of animosity towards Obama, but an irreconcilable belief in free markets, equality and the rule of law.

I believe that Cannon is sincere. He has taken a lot of flak on Twitter, ranging from ridicule to ridiculous comparisons with Lucifer. He has always responded gracefully and with consistent logic. I suspect he was a formidable college debater.

Sincerity matters. But sincerity is also the last refuge of blithering nonsense. Holding statutory language to scientific precision can border on parody. Perhaps Lewis Carroll had lawyers in mind when he wrote the chit chat between Alice and the March Hare at the Mad Hatter’s tea party.

“Then you should say what you mean,” the March Hare went on.

“I do,” Alice hastily replied; “at least–at least I mean what I say–that’s the same thing, you know.”
Some argue that statutory language must say what it means and mean what it says. We are, after all, but a short step to anarchy, but for the rule of law. This is partly correct. But when plain language is taken too literally, little space is left for common sense.

If language is even more devoid of context, we will be even more overregulated and even more overlawyered. This country is less free than it first appears and excessive deference to plain language is one of the reasons, in my opinion.

That SCOTUS even deliberated King v. Burwell surprised me. But I am not a scholar of law. I have more chances of finishing Memoirs of a Geisha than a book on administrative law. And SCOTUS has a history of breathing scholarship to parody. Its deliberations remind me of the British comedy, Yes Prime Minister<https://www.youtube.com/watch?v=8keZbZL2ero>, in which Humphrey Appleby and Jim Hacker dueled with witty erudition.

The one-liners of SCOTUS are stuff of legends. My favorite one came from Justice Potter Stewart who, when defining pornography in Jacobellis v. Ohio, conceded “I know it when I see it”. And this decision was no exception. To cement the decision, Justice Roberts said, with breezy after sense, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”

The best line came from Justice Scalia. Frustrated with the badly written Obamacare, Scalia quipped “we should start calling this law SCOTUScare.”


If the Onion is recruiting writers it need look no further than SCOTUS.

It is reassuring that common sense still resides in the Supreme Court, though disheartening how frequently SCOTUS is asked to deliver it. SCOTUS seems happy to guard common sense, as well as the constitution, but as far as poor grammar is concerned, it says Americans are on their own.

But what SCOTUS really has said in King v. Burwell, and NFIB v. Sebelius and others, is that it will not overturn what has arisen from the ballot. There is a tendency I have noticed. When we like the results of the ballot we laud democracy. When we don’t like the results we run to SCOTUS crying “O Republic, Republic, wherefore art thou Republic?” SCOTUS has called our bluff. And rightly so. There is a time and place to resolve pettiness. It’s called an election.

If people truly dislike Obamacare as much as many claim others dislike Obamacare then they can speak with their votes in 2016. I have my doubts.

About the author

The author’s opinions do not reflect the opinions of his institution or his family. In fact, they may not reflect his own opinions or his opinion on his opinion.

He can be follow on Twitter @RogueRad

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16 replies »

  1. “It’s all about degree. Excessive “literalness”

    Can you define the phrase “Excessive “literalness”? No, so there will be a gray area. When that gray area exists and becomes polarized then there was no meeting of the minds and when there is no meeting of the minds the contract is not rewritten by a judge, rather it is assumed there was no contract.

    In this case there is ample reason to believe that those 4 words had a lot of meaning. We don’t just have to listen to Gruber. Thus I don’t think a valid vote was taken since those voting relied upon what those words said and some might have voted differently if those words were not included.

  2. It’s all about degree. Excessive “literalness” creates its own problems. Whimsical caprice is also problematic. There is a balance somewhere. King vs. Burwell struck me as being fundamentally petty. If pettiness is what is required to save the republic, it won’t be much of a republic to be saved.

  3. Since there is such “Textual clarity” explain the 4 words.

    1321 C does not change the meaning or context of those 4 words. If you feel otherwise quote 1321 or a part of it and explain how that makes the 4 words disappear.

  4. ACA Section 1321(c). No clairvoyance required. Textual clarity. You are the black knight at the stream crossing in Holy Grail.

  5. There are conflicts in the law. That means it wasn’t written correctly and those voting on it might have voted differently if the conflicts didn’t exist.

    I am sure the intent of the parking sign was to mean what the sign said if the comma were included, but the comma wasn’t included and the woman parked her car She in essence voted believing her version of what the sign meant.

    Suddenly some want judges to interpret the minds of all the Senators voting for the ACA. We have passed a new boundary from judging what the text of the law states to mind reading.

  6. “Only SOME wording matters.”

    For BobbyG and a few others:

    “established by the state” is very clear in its meaning whether or not the intent of some was quite different. When Congress voted they voted on those 4 words.

    See: Missing Comma Gets Woman Out Of A Parking Ticket

    The parking sign wasn’t written correctly. Should we charge the woman for parking when the sign said something else?

    “The ticket was for parking more than 24 hours in a place that didn’t allow a motor vehicle camper. Andrea Cammelleri argued that her motor vehicle – a pickup truck – wasn’t a camper. The law should’ve had a comma between motor vehicle and camper. The judge blamed the missing comma and tossed out the ticket. ”

    Take note how governmental bodies have to write their laws correctly.

  7. When everyone is faced with laws that are interpreted at the whim of their masters all will want laws that are consistent and based upon the written word. People have short term memories and don’t always look far enough in the future to recognize the trade offs so when they encounter an officer giving them a traffic ticket they suddenly become dumb and childlike (like Democrats… You seem to like the idea of demeaning a party rather than discussing ideas. )

    When I get a speeding ticket I thank the officer and wish him well. You should do the same.

  8. “Who wants laws that are based upon whim and which direction the wind is coming from?”

    Everyone, when they encounter the law. That’s why, when people get traffic tickets their first words are, “Yes officer, but….” And that’s also why people hire lawyers – to push the wind in their direction.

  9. Only SOME wording matters. ACA Section 1321(c) wording apparently did not to the dissenters.

  10. “You don’t exactly improve health insurance markets by subsidizing purchasers.”

    Of course, we all know that “markets” are conceptually far and away the most important thing.

    See Ryan, Paul, “Conservative” Republican Thought Leader, re: “vouchers.”

    On whom the irony of GIVING people taxpayer money as a “Conservative” principle to, well, — subsidize participation in the insurance market — is utterly lost.

    BTW, good piece in the New Yorker: “Why Obamacare’s Future is Secure”


  11. “You don’t exactly improve health insurance markets by subsidizing purchasers.”

    No, but they provide access to those that previously had none. A health care “market” only could exist if you’re willing to see several million people suffer without care – that’ll teach them.

  12. As with their Bibles, Repuglicans love mindless literalism.

    Yes, if wording was so important over intent then they could have fixed it legislatively, but we know it was never about getting the wording right.

  13. You don’t exactly improve health insurance markets by subsidizing purchasers. Need econ citation here. Strange idea of “market”.

    You don’t need SCOTUS to amend errors or typos in legislation. When you want the Court to do the job instead of the legislature, it says you don’t trust Congress to make the changes because the law is iffy or Congress has changed…and you don’t want the people to have a second shot at it. If the Congress has changed and you still want the Court to make the changes it means that you don’t trust the new representatives from the majority of people.
    This also says you believe the law is not the reflection of the new majority’s will and you would rather have a minority win. All this begins to imply that the law is not so hot or bipartisan. Do we want laws like this?

  14. Better metronomic than random or manipulated.

    But, what does ‘metronomic’ do? It makes things more exacting. Who wants laws that are based upon whim and which direction the wind is coming from?

  15. “an irreconcilable belief in free markets, equality and the rule of law.”

    Putting aside the quibble that there’s really no such thing as “free markets” (which the True Believers always conflate with private markets), talk about a troika of irreconcilables in that sentence clause.

    Re the fatuous King v Burwell: ACA Section 1311 (setting forth the contentious 4 words) begins with the phrase “IN GENERAL.”


    Twelve pages later Section 1321(c) then goes on to specify what the feds are authorized to do in the wake of state HIX inaction (i.e., set them up and run them in a manner consistent with the law’s explicit goal of “affordable coverage for all Americans” — e.g., also right there textually IN the statute). Scalia lets the poignant spittle fly in his dissent, repeatedly citing the “established by the state” 1311(d) canard, but he never once mentions the trumping 1321(c). Apparently words indeed “have no meaning” if they contradict your harrumphing ideological riff.

    6-3. Nothing more to see here, folks.

    BTW, just finished a pretty cool book. “ObamaCare Is A Great Mess: A View of the Affordable Care Act Without Partisan Blinders & How to Fix It”