Sen. Orrin Hatch (R-Utah) yesterday pressed Secretary of Health and Human Services Sylvia Burwell on the King v. Burwell case, specifically on consumer subsidies. The far-right senator argued, with a straight face, that the language in the Affordable Care Act “is unambiguous, in my opinion.”
By that, the Utah Republican was effectively arguing that the ACA’s language, without “ambiguity,” intended to deny subsidies to every American consumer who signed up for insurance through healthcare.gov – reality be damned.
The problem – well, one of them – is that Hatch doesn’t really believe his own rhetoric. We know this for certain because Hatch, before the King v. Burwell case existed, accidentally told the truth in 2010, explaining in an op-ed that state exchanges “are not a condition” for subsidies. A year later, Hatch voted for legislation that was based on the unquestioned belief that subsidies would go to all consumers, including those who purchased plans through healthcare.gov.
Whether craven partisans and lazy politicians struggle to keep up appearances or not, anti-healthcare Republicans will no doubt continue to argue that there’s part of a sentence in the 12-million-word law that’s not as clear as the law’s supporters would like. The Supreme Court has no choice, conservatives therefore argue, but to require that the law is followed as written – and if an ambiguous phrase destroys the system, causes systemic chaos, leads to tens of thousands of deaths, so be it.
In reality, American jurisprudence doesn’t work this way. Linda Greenhouse has an important piece today, part of which emphasizes the importance of context.
The precise statutory issue is the validity of the Internal Revenue Service rule that makes the tax subsidies available to those who qualify by virtue of their income, regardless of whether the federal government or a state set up the exchange on which the insurance was bought. The challengers’ argument that the rule is invalid depends on the significance of two sub-clauses of the act that refer to “an exchange established by a state,” seemingly to the exclusion of the federally established exchanges.But other parts of the complex and interlocking description of how the subsidies work suggest no such limitation. They point strongly in the opposite direction.
For the right, the goal is to have high-court justices declare that those six words – “an exchange established by a state” – are not only more important than intent and the rest of the law, but also that those six words must be removed from context and evaluated in isolation.
Except, American jurisprudence doesn’t work that way, either.
We know this because the justices have already told us so. From Greenhouse’s piece:
Every justice subscribes to the notion that statutory language has to be understood in context. Justice Scalia said it from the bench just last month, during an argument about the proper interpretation of the federal Fair Housing Act. “When we look at a provision of law, we look at the entire provision of law, including later amendments,” Justice Scalia said. “We try to make sense of the law as a whole.” […]Across the ideological spectrum, the court’s opinions are filled with comments like Justice Scalia’s. Justice Clarence Thomas wrote in a 1997 opinion that in a statutory case, courts have to look at “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”Chief Justice John G. Roberts Jr., arguing for contextual interpretation in a 2009 opinion, observed that “the sun may be a star, but ‘starry sky’ does not refer to a bright summer day.”Justice Anthony M. Kennedy wrote in a 2006 opinion that an interpretation of a single statutory provision “is persuasive only to the extent one scrutinizes the provision without the illumination of the rest of the statute.”
And this, in a nutshell, is why King v. Burwell is the single stupidest thing I’ve ever seen in my adult life. To take the right’s argument seriously, one has to believe that the entire American legal system must be thrown out – context no longer matters in evaluating laws, intent no longer matters in evaluating laws, history no longer matters in evaluating laws, everything conservative justices themselves have said about how laws are evaluated no longer matters in evaluating laws.
All that matters, according to the plaintiffs’ argument, is imposing health care chaos. If that means trashing American jurisprudence, then that’s exactly what the justices must do.
With this in mind, the ruling in King v. Burwell will have sweeping consequences in the lives of tens of millions of people, but it’s not just health security at stake. The integrity of the Supreme Court itself is on the line.