Drafting error vs. poor draftsmanship

Obamacare by its express and unambiguous terms limits Obamacare subsidies to people using health care exchanges “established by the State.” Thus, subsidies to people in the federal exchange are not permitted, as these exchanges obviously are not established by the State.

However couched, the argument that subsidies should nonetheless accrue to people in the federal exchange boils down to the notion that the limiting language of the statute is the result of “drafting error.” This must be so, leftists argue, because otherwise Congress included in Obamacare the seeds of its own destruction, giving governors who choose not to establish exchanges the power to kill this law. Accordingly, courts should take whatever liberties are necessary to avoid the absurd product of mere drafting error.

But the “error” at issue here (if there was one) is not a simple case of drafting error.

What would a simple drafting error look like? A legislature might create special lanes for rush hour traffic to be used only by cars with 4 or more passengers between the hours of 5:00 p.m. and 6:30 p.m. As a result of drafting error, the final bill might make these lanes available only to cars with 40 or more passengers. Or it might make the lanes available between the hours of 5:00 a.m. and 6:30 a.m.

Even in this instance, the best judicial course is to let the legislature correct its error. But if the error is manifest from, say, the legislation’s conference report and/or the floor debate, there is no harm in a court correcting the error.

But suppose there is evidence that the legislators were concerned about traffic jams that occur as early as 4:30 and as late as 7:00. Or suppose the legislation contains a funding provision grossly inadequate to construct the new traffic lanes.

One could call the use of excessively restrictive time parameters or the impossibly low level of funding drafting errors, but they are more accurately described as poor draftsmanship. The faulty provisions appear in the legislation not by accident but by intent. A moment’s reflection might well have led to their exclusion or deletion, but if so, that moment never occurred.

In this situation, it is clearly improper for a court to “fix” the legislation. Courts do not serve as editors for lawmakers. They must give effect to what legislators write into law, not what they would have written if they were more thoughtful.

Correcting for typos is one thing. Nullifying provisions intentionally (if mistakenly) written into law is quite another.

I should add that in the case of Obamacare, it is far from clear that the provision in question here — the one that limits subsidies to individuals in state exchanges — actually slipped into the law as a result of negligent drafting. Andy McCarthy makes the case that Congress knew what it was doing here. Ramesh Ponuru does so on here.

But it doesn’t matter whether the provision appears in Obamacare because Congress was half-witted or too clever by a half. The provision exists, and it is illegitimate for a court to nullify it.

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