Friday, June 26, 2015

King v Burwell

Happily, I don't have a dog in the Obamacare fight. From my vantage over the Atlantic I can cheerfully observe both that the US have just about the worst possible healthcare system in the Western world, and that they'd be insane to try and replicate the NHS. I am a little bit surprised by the reasoning behind the decision in King v Burwell though.

For those among us who don't follow every twist and turn in the US healthcare debate (slackers), King v Burwell was an attempt to show that the tax credits/subsidies allowed for under the law could only apply to people in states with state-operated exchanges (i.e. where the individual US State had elected to set up an insurance exchange), and not where the exchange had been established by the federal state.

The reason this was brought was that the relevant wording of the law allowed a tax deductible for:
"the monthly premiums for ... qualified health plans offered in the individual market within a State which cover the taxpayer... and which were enrolled in through an Exchange established by the State"
Plaintiffs not unreasonably held that a law saying that you could get a tax break by enrolling in exchanges established by the State did not mean that you could get a tax break by enrolling in exchanges that wasn't established by the State.

The practical implications of this case were fairly serious - it would basically have punctured the Affordable Care Act by making it massively more expensive to get insurance in those States where there were no State-established exchanges. The obvious solution (amend the damn thing and get it re-passed) was not available, because the ACA would no longer have a majority in Congress. So, what's the Court to do? Politically, effectively overturning the most important single piece of legislation passed in the last decade, not on the grounds of constitutionality, but on the grounds of basic interpretation of a technicality would be a really very big call. On the other hand, the actual wording of the actual statute is really abundantly clear. What to do?
Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.
Teleological interpretation, that's what. "The object of all interpretation lies in the true intention of the lawmakers." Obama's Congress clearly didn't mean to fuck up the legislation, therefore they couldn't have done it. There are those who think that this method of statutory interpretation is a good thing - some of them are even American:
In today’s King v. Burwell, the Court said that in close cases, make the law work the way Congress obviously intended it. That’s a very good thing.
I have to admit that I thoroughly disagree. What's important is not what Congress intended, whether that's obvious or not. What's important is what Congress actually said. The only proper guide we have is the words of the statute. What do the words mean? This is something that courts really really ought to determine on the basis of the words in front of them and nothing else.

Once you get into the purposive, teleological route of what people meant to say, you end up with the situation of the Court having to make law, rather than simply interpret it. That's the way the ECJ works, and is the key reason that European law is such a clusterfuck - a combination of teleological interpretation and the fact the ECJ is not bound by its own previous decisions means that nobody has the faintest idea what decision they'll make on any given issue - there's no guidance other than the Judges' consciences.

The Supreme Court has shied away from giving words their ordinary meaning. As Scalia said, in a very Scalia dissent:
The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.
That they have done in a 'good cause' (and I think that this is a good cause) doesn't make it any better - breaking the rules for a good reason makes it much easier to break them for a bad reason.


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