- - Friday, March 6, 2015

An air of unreality about how Congress enacts laws floated this week through the U.S. Supreme Court this in King v. Burwell.

The case challenges the legality of Obamacare subsidies for insurance policies purchased on exchanges established by the federal government. The relevant statutory text confines the subsidies to health insurance purchased on exchanges “established by the state.” Although a linguist or former president might discern ambiguity in the meaning of the word “is,” the meaning of the word “state” is free from doubt. It is not the federal government. Congress has never used the two terms as synonymous. To do so would do violence to the 10th Amendment and the U.S. Constitution’s scheme of federalism and state autonomy.

In sum, the plain meaning of the statutory text should easily resolve the case against federal subsidies for policies purchased on federally operated exchanges. That holding would affect approximately 7 million insured in 34 states currently receiving federal subsidies under a counter-textual interpretation of Obamacare by the Internal Revenue Service (IRS).

But delusional canons of statutory construction fashioned by the Supreme Court leave the decision in King v. Burwell in substantial doubt. They instruct that the text of a law may be abandoned whenever necessary to achieve statutory harmony as dulcet as Beethoven’s Ninth Symphony. Thus, during oral argument, Justice Elena Kagan maintained, “We don’t look at four words. We look at the whole text, the particular context, the more general context, try to make everything harmonious with everything else.” Justice Sonia Sotomayor worried that interpreting the words “established by the state” to mean what they say would place the financial viability of Obamacare in doubt: “We’re going to have the death spiral that this system was enacted to avoid.”

Proponents of a strict textual interpretation argued that the result sensibly furthered the congressional objective of encouraging states to establish health insurance exchanges by promising hefty federal subsidies for their citizens.

In sum, both sides of the King .v Burwell debate presumed that Congress intends laws that are intellectually tidy or rational. But they are both wrong.

Members chronically vote for bills with contradictory or nonsensical provisions. They benefit politically by passing euphonious sounding legislation that wars with itself because their constituents are clueless about the legal havoc they have created. The courts can be blamed for delivering the bad message that the legislation was not what it seemed, like a munificent bequest in a pauper’s will.

Most members are clueless about the text they may have voted to approve. Thus, then-House Speaker Nancy Pelosi commented about Obamacare that Congress “[has] to pass the bill so you can find out what’s in it …”

There is no House or Senate rule that requires legislation to satisfy a threshold of rationality or intellectual coherence. Indeed, members believe like F. Scott Fitzgerald that, “The test of a first-rate intelligence is the ability to hold two opposing ideas in the mind at the same time and still retain the ability to function.”

Think of the absurdity of Congress voting on authorizing President Obama to conduct war against the Islamic State of Iraq and Syria (ISIS) long months after the war was initiated by presidential decree and which the president promises to continue irrespective of what does.

The Supreme Court needs to make Congress accountable for writing self-contradictory or inscrutable laws. It should adhere to the plain meaning of the text irrespective of the political or practical ramifications. It can defer the effective date of such rulings to give Congress a reasonable time in which to enact remedial legislation if thought appropriate. In King v. Burwell, that would mean postponing a ruling ending federal subsidies for 7 million insured for six months to permit Congress an opportunity to enact legislation to continue them without interruption.

Article I, section 1 of the Constitution vests all legislative power in “a Congress of the United States.” The Supreme Court should not permit Congress to circumvent this responsibility by enacting gibberish for wholesale rewriting by the judicial branch. If it does, the intellectual sloppiness or nonsense that gave birth to King v. Burwell will recur and the judiciary will become an unelected surrogate Congress.

For more information about Bruce Fein, please visit www.brucefeinlaw.com.

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