The Supreme Court’s ‘Interpretive Jiggery-Pokery’ Decision

By John Daniel Davidson

Thursday, June 25, 2015

The Supreme Court ruling in King v. Burwell affirms a philosophy of governance fundamentally at odds with the meaning and purpose of the U.S. Constitution and the ideals of America—that we should be a nation ruled by law, not by men, still less by unelected bureaucrats in Washington, D.C.

The decision, which preserves subsidies for health insurance on exchanges set up by the federal government in 34 states, amounts to a repudiation of the constitutional principle of separation of powers in favor of rule by an administrative bureaucracy. Recall that the question in Burwell was whether subsidies for health insurance were available on federal exchanges when the language of the Affordable Care Act states clearly that subsidies will be available only on an exchange “established by the state.”

The challengers argued that this was done on purpose, to induce states to set up exchanges—not an easy thing to do, it turns out—since Congress could not simply command states to do so. Thus, when dozens of states declined to set up exchanges, the White House instructed the IRS to issue a rule that, despite the plain language of the statute, exchanges created by the federal government would be the same as those created by the states.

The Court’s decision, which upheld the Fourth Circuit’s ruling, was framed as simple matter of statutory interpretation: does “established by the state” mean what it appears to mean, or does it include exchanges established by the federal government? Chief Justice John Roberts, writing for the majority, concedes the ACA contains “more than a few examples of inartful drafting,” that much of it was drafted behind closed doors and “does not reflect the type of care and deliberation that one might expect of such significant legislation.” He concludes that the statute is ambiguous and that, in the broader context of the law, it is “implausible” that Congress meant to restrict subsidies to state-based exchanges.

In other words, Roberts dismisses the idea that a bad policy outcome is the proper consequence of a poorly-written law. He reasons that because interpreting the statute according to its plain meaning would mean parts of the law would not work very well, Congress must have intended the law to mean something other than what it says.

Justice Antonin Scalia, writing for the dissent, says this: “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.”

It’s worth quoting Scalia at length, because he articulates what many observers of Burwell have long thought, that the case is ultimately about whether words have any meaning at all, and whether the constitutional principle of separation of powers still obtains:

    “You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an ‘Exchange established by the State.’ The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B… Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’”

Scalia expresses a deep frustration with the Court’s approach to the ACA as a whole, which has been one of “interpretive jiggery-pokery” that “reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery.”

    “That philosophy ignores the American people’s decision to give Congress ‘[a]ll legislative Powers’ enumerated in the Constitution. Art. I, §1. They made Congress, not this Court, responsible for both making laws and mending them. This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct.”

He and his fellow dissenters (Justices Alito and Thomas) rightly believe the consequences of Burwell are far-reaching. No longer must elected representatives pass actual laws. It’s enough, now, for Congress to express a desire for a policy outcome and leave the details to an unelected bureaucracy—even when those details involve billions of dollars in taxes and spending, strict mandates and penalties, and government control over vast swaths of the economy.

Such a shift bodes ill not just for the opponents of the administrative state but also for the Court, which will henceforth be seen—if it is not already—as yet another partisan branch of government:

    “Perhaps the Patient Protection and Affordable Care Act will attain the enduring status of the Social Security Act or the Taft-Hartley Act; perhaps not. But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (‘penalty’ means tax, ‘further [Medicaid] payments to the State’ means only incremental Medicaid payments to the State, ‘established by the State’ means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”

The Burwell ruling is, on the surface, a victory for the Obama administration. Expect its champions in the media to revel in triumph. Yet no amount of Roberts’ mental gymnastics will prevent the long-term effects that Scalia lays bare. With Burwell, the court has woefully undermined its nature and purpose, as Alexander Hamilton said, “to have neither FORCE nor WILL but merely judgment.”