King v. Burwell—An Exceptional Decision

King v. Burwell, the second major Supreme Court ruling interpreting the meaning and constitutional bona fides of the Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119 (commonly referenced as “Obamacare”), is an exceptional decision. Unfortunately, the exceptions it makes are to established rules of statutory construction. While the outcome that follows from these exceptions may spare the Court criticism from some quarters, they open the Court to reproach for embracing a decisional style sufficiently malleable to diminish the judiciary’s standing as a support for the rule of law—a dose of which was delivered promptly in Justice Scalia’s opinion for the three dissenting members of the Court.

The essential issue in the case is whether an ACA reference to exchanges “established by the State under Section 1311” (codified at 42 USC § 18031) should be read to include exchanges established and operated by the Secretary of Health and Human Services (federal exchanges) under a different ACA Section (Section 1321, now § 18041). On one point, the majority opinion by Chief Justice John Roberts delivers a notable statement of how the Court views its doctrine of deferring to agencies on construing ambiguous legal terms. The majority rightly says that, even if the provision at issue is not clear, the law does not give the IRS authority to decide what the provision at issue means—both because the interpretive question is of too great importance to presume that Congress intended to deputize administrators to make it (without an express delegation) and because the fit between such a decision and the competence of the IRS is poor. The first reason aptly characterizes why deference to administrative decisions is sometimes warranted and appropriately rejects such deference here; the second reason buttresses the first; all-in-all a reasonable position for the Court.

Unfortunately, the great bulk of the majority opinion consists of an extended effort to explain why the law’s reference to an “Exchange established by the State under [§ 18031]” must mean in effect “Exchange established by the State under [§ 18031] or Exchange established by the Secretary of HHS under [§ 18041].” The main defense for this proposition is that the law would not work the way the Court thinks its drafters intended if the provision at issue means what it expressly says. The majority identifies a series of provisions in the law and uses of terms that it declares show that the statutory language in context must have a different meaning. Each of these constructions is arguable, given the act’s complexity and frequent apparent inconsistency. But the essential argument is not that the Court’s construction is the best reading of a term strictly as a means of avoiding plain conflict between provisions; instead, it is that the inferred purposes of the law would be frustrated significantly under a different construction.

The majority several times refers to the poor draftsmanship of the law and the factors that led to that—notably, writing the law “behind closed doors,” using procedural maneuvers that limited or eliminated debate, and generally pushing to get something passed rather than to risk rigorous testing of the law’s construction. Such observations should lead a court to conclude that the law may not be drafted well to do what its proponents would have wanted or that the law might have more complex and less tidy purposes. The Court might easily have concluded that, given the law’s provenance, a fair reading of its directions well might lead to unintended and even bad consequences—but recognize that such speculation is beyond its purview. Instead, the majority concludes that it can assess what the law was designed to do, should construe terms in the way best calculated to serve that end, even if that does not give the terms used in the law their most obvious meaning, and also can determine how a given construction would in practice advance or impede the law’s intended effects.

Anyone schooled in legal interpretation knows that canons of construction can be spongy, that different canons can seem at odds, and that application of the canons has not been an exercise in clarity and consistency. The dissent by Justice Scalia very sharply critiques the majority opinion’s treatment of several canons, showing how each is being stretched in ways that at least are difficult to square with the canons’ best readings. That’s fair game, but hardly unusual. While I find Scalia’s opinion the more persuasive one, that debate is won in my view on a slightly different ground: the dissent’s critiques resonate particularly strongly because the engine driving the majority opinion so plainly is concern about the practical consequences of a more straightforward reading of the statute’s text, not about the way a term must be understood in the textual provision for reasons more clearly directed to language and context.

While evaluation of a legal term’s meaning by reference to the context in which it is used calls on tools of construction within the core competence of lawyers and judges, construction of statutory terms to avoid untoward practical consequences generally requires judgments that draw on resources well beyond the lawyer’s or judge’s natural ken. Commonly, there are many different potential adjustments in behavior and in law that can be made to any judicial interpretation of the law, and judges simply are not well-positioned to evaluate the relative likelihood, the ultimate impact, or the relative social merit of any of these responses. That certainly was the case in King.

More important, the Constitution assigns the task of evaluating such practical consequences to the legislative branch in framing the law and to the executive branch in exercising delegated discretion in administering the law. The duty of courts, as so often quoted from Marbury v. Madison(including in the majority opinion in King), is to say what the law is, not to determine what it should be to promote good consequences or to avoid ill consequences. Unlike the courts’ role when construing the import of decisions that comprise common law, the judicial power in applying governing legal texts such as statutes is restricted to understanding the terms of the law and applying them to the case at bar.

Perhaps the majority decision in King v. Burwell is more than a clever, convoluted exercise in avoiding bad practical consequences. But the Court’s opinion seems to strain to avoid the law’s plain meaning for a reason not easily understood from the text itself. It’s fair to say that the textual limitation to state-created exchanges could have been unintended or not fully understood and even that its practical impact could be unfortunate. Getting from there to the majority’s result is more problematic. Giving judges the power to rewrite laws to avoid bad outcomes—especially for laws admittedly written poorly, in secret, and adopted in ways designed to suppress commentary and correction—undermines constitutional structure and essential attributes of the rule of law. Justice Holmes’s oft-misquoted aphorism declares that “Great cases, like hard cases, make bad law.” This decision shows how a bad law can make an easy case hard for justices to accept—making more bad law.

Ronald A. Cass is Dean Emeritus of Boston University School of Law, President of Cass & Associates, PC, and Chairman of the Center for the Rule of Law.