Let’s call the whole thing off

The starting point of statutory construction is the language of the statute itself. If the words of a statute are clear, they are to be construed according to their plain meaning. See generally Yule Kim, Statutory Interpretation: General Principles and Recent Trends (Congressional Research Service, 2008). If the words of a statue are ambiguous, a court may resort to legislative history and other devices to construe it. The Supreme Court has demonstrated that it can do whatever it wants and has said just about as much on occasion in the past.

The case of King v. Burwell pending before the Supreme Court raises a question of statutory construction regarding the phrase “established by the state.” The IRS has disregarded the words in promulgating the regulation making Obamacare subsidies available in exchanges established by the federal government for states that have declined to establish them as well as states that have established them under duly enacted state law. I wrote about the case briefly in “Triumph of the leftist will.” Documents filed in the case have been compiled by the Competitive Enterprise Institute here.

New York Times reporter Robert Pear now turns to the question before the Court in his New York Times story “Four words that imperil health care law were all a mistake, writers now say.” In his first sentence Pear begins with the proposition that the words “established by the state” are ambiguous, which rigs the game. In a sense, under traditional rules of statutory construction, Pear begs the question, assuming what is to proved. What part of “state” don’t you understand?

Pear nevertheless creates ambiguity by treating various Senators as authors of the 2,000 page bill and therefore authorities on its meaning. The first to whom he turns is former Maine Senator Olympia Snowe, who voted against the Obamacare bill enacted by Congress. I don’t think there is any theory of statutory construction that would make Snowe an authority under these circumstances, but that doesn’t stop Pear. Pear quotes Snow: “I don’t ever recall any distinction between federal and state exchanges in terms of the availability of subsidies.”

Snowe had more such helpful commentary for Pear: “It was never part of our conversations at any point.” A reasonable person might conclude at this point that there is no illumination to be shed by Snowe on the question, but neither Snowe nor Pear thinks so. Snowe asked a rhetorical question: “Why would we have wanted to deny people subsidies? It was not their fault if their state did not set up an exchange.” Well, Senator Snowe, you voted against the bill. Why did you want to deny the whole country the benefits of Obamacare?

Pear doesn’t go there. Rather, he quotes Snowe further. The four words, she said, were perhaps “inadvertent language,” adding, “I don’t know how else to explain it.”

Snowe only provides the comic opening to Pear’s long, nervous article. He has much more. One resource to whom Pear does not turn, however, is Jonathan Gruber. Gruber is conspicuous by his absence.

Congress said exchanges “established by the state.” Pear’s sources say “drafting error” or “oversight” or “accident.” I say let’s call the whole thing off. The Supreme Court will have its say before the end of its current term on June 30.


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