A Government of Laws? Only If You Can Guess What They Mean.

John Adams once stated that the U.S. was to be a government of law, and not of men.  This meant that the word of law – the text, not the intent – was to govern.  If the law was inartfully drafted, or had negative and unintended consequences, a democratically-elected Congress could change the law.  If the law was unconstitutional as drafted, then it was void until corrected.  While never perfectly practiced, this ideal has at least been nominally present throughout most of the nation’s federal jurisprudence.  That, I fear, is no more.

In the King v. Burwell decision, No. 14-114, the Supreme Court tossed aside its judicial objectivity in the face of a highly contentious, but important, public debate over the constitutionality of the “Obamacare” statutory scheme.  The Court in King essentially decided that the survival of the statute’s perceived goals was more important than what the statute actually said.  Put another way, the means were less important than the ends.  In a “government of laws,” this is precisely the wrong conclusion.  With History’s ironic sense of humor, King was decided during the 10 year anniversary of another egregious judicial rewriting: Kelo v. New London.

The ACA provides for two types of insurance exchanges: those created by the state, and those created by HHS in those states that have not set up a state exchange.  The statutory regime also exempts individuals from the purchase of health care requirement – the Individual Mandate – if the cost exceeds 8% of their income.  To alleviate this, the ACA provides tax credits to those individuals.  However, the statute creates the tax credit for “Exchange[s] established by the State.”  In creating the administrative rule to execute this, the IRS granted the tax credit to those covered by state exchanges and federal exchanges.  The King Petitioners were Virginia residents (a state without a state exchange) who argued that they were ineligible for the tax credit and thus were exempt from the Individual Mandate, as the cost exceeded 8% of their income.

The language is important here: the section of the law that allows the tax credit refers to “applicable taxpayers,” and provides a credit “equal to the premium assistance credit amount.”  That term is then defined as “the sum of the premium assistance amounts . . . with respect to all coverage months of the taxpayer . . .”  One more round of definitions defines “premium assistance amounts” and “coverage months” in reference to health insurance plans that have been purchased through “an Exchange established by the State.”  Even the term “State” is defined as “each of the 50 States and the District of Columbia,” which Roberts correctly notes “does not include the Federal Government.”

The Government argued (and the federal  courts have now accepted) that the term “established by the State” actually means “established by the State or the Federal Government.”  Justice Roberts, once again writing for a fractured Court on the health care issue, starts off with the statutory interpretation framework he then goes on to ignore: “If the statutory language is plain, we must enforce it according to its terms.” Roberts then explains that, perhaps counter-intuitively, the plain meaning of the words must sometimes be found by their intent and context.

While context is always important in understanding what a word means, context was not the problem here.  If I say “Bob and Fred are builders in our town and Bob built my house,” I cannot legitimately argue that I really meant that Fred built it, even though I previously stated that both are builders.  And, if Fred actually built my house, I would have made a wrong statement, not a true statement taken out of context.  The plain meaning of my original statement certainly cannot be interpreted to mean “Fred built my house,” simply because I could not have meant to say something untrue.  Rather, the plain meaning would have been what I said, and it would have been wrong.  The only way to remedy that incorrect statement is to change it.

However, Roberts tries to argue that the wrong statement was, in reality, the plain meaning (if only you were to discard the “natural meaning”).  The statute says “Exchanges established by the State.”  The statute refers to both State and Federal Exchanges, both of which behave similarly, but are established and administered by two different entities.  However, Roberts concludes that because Congress probably said the wrong thing, that “plain meaning” should be construed to mean “correct meaning.”  Thus, the intent of the statute, not the language that was written down, is the law.  A government of men . . .

After nominally eschewing judicial redrafting of statutes, Roberts begins redrafting the statute.  Despite finding that the “plain meaning” of the statute controls, he acknowledges that “[i]f we give the phrase ‘the State that established the Exchange’ its most natural meaning, there would be no ‘qualified individuals’ on Federal Exchanges.” (Emphasis in original).  But because the Act “clearly contemplates” individuals on the Federal Exchange, the law must be reinterpreted.  It is a problem that “arises repeatedly throughout the Act.”  Thus, “Bob built my house,” really means, “Fred built my house,” because Fred really did build my house.

The other bit of statutory reconstruction occurs under the third element of the statute.  A tax credit is available to “State Exchanges” “under 42 U.S.C. § 18031.  The Federal Exchange, however, is established pursuant to 42 U.S.C. § 18041.  Roberts gets around this drafting error by pointing out the 18041 actually tells the HHS Secretary to establish the same type of Exchange as outlined in 18031.  Of course, this does not solve the problem.  If Fred built my house, I cannot say that Fred and Bob built it, merely because it looks like a house Bob built.  Likewise, an Exchange operated by the Federal Government is not a State Exchange, regardless whether it is built on the same model and follows the same rules.

Roberts, however, would view my statements concerning Fred and Bob as ambiguous, just as he views “established by the State” as ambigiuous.  This is because the Exchange authorization statute instructs the HHS Secretary to establish “such Exchange” (referring to State Exchanges) in the absence of a state-established Exchange.  Thus, Roberts sees no difference between the one who builds and the one who designs the model, or at least is substantially confused by who is the actual builder to allow others to make the determination.

Despite the Courts’ linguistic exploration, what appears to have actually occurred is a strong dose of judicial Baywatch.  Seeing a statute caught in the undertow of the Constitution and its own incompetence, floundering and splashing about, Roberts and the rest of the legal lifeguards rushed in to save it, ignoring all of the legal and Constitutional hazards in doing so.  Roberts acknowledges that the “arguments about the plain meaning . . . are strong,” but argues that the law would be “untenable” if read according to any normal view of grammar or language.  Thus, in order to save this particular law, the Court has tossed aside its analytical approach reserved for other laws, which effectively means that “Too Big to Fail” has entered the world of constitutional jurisdprudence.

As much as the tendency exists to make this something new, let us be reminded that this week marks the 10th anniversary of another egregious example of redrafting, one which may in fact be considered more detrimental to the law, as it rewrote the text of the Constitution, rather than a particular statute.

The Supreme Court decided Kelo v. New London in 2005, which held that the term “public use” does not, in fact, mean “public use.”  In his decision, Justice Stevens (now retired) chastised those who might be so inclined to interpret words by their plain meaning as holding a “narrow view” which has “steadily eroded over time.”  After all, he wrote that that “narrow view . . . proved to be impractical given the diverse and always evolving needs of society.”

It is no surprise, then, that since the infancy of Progressivism in the very late 1800’s, the Court has utilized the “public purpose” test, rather than the Constitutional text.   Of course, the Court “define[s] that concept [public purpose] broadly,” effectively flipping the protections of the Constitution from the protection of individual rights to the protection of an active Government.  Thus, the Court upheld the taking of property for a supposed “public purpose” in 1954, when Washington, D.C. condemned a non-blighted department store in the middle of a blighted area, for purposes of redevelopment.  It upheld another taking of private property in Hawaii when title was transferred from landlords to tenants to destroy the “social and economic evils of a land oligopoly.”  (No mention was made of the social and economic evils accompanying the sort of government that unilaterally determines A’s property rights are more important than B’s desire to own that property, the sort of dilemma resolved by the Takings Clause in the Constitution).

Economic redevelopment, Justice Stevens concluded, “unquestionably serves a public purpose.”  Thus, in Kelo, the only question for the Court was whether just compensation was paid.  The ability of the government to remove individuals from their homes in order to facilitate a promenade (to be actually used by the public), shopping center, hotel, new private residences, and a large Pfizer facility was not questioned.  Notably, the Petitioners in Kelo all owned property that was to be developed as part of the private, corporate development, not the promenade or public areas.  That, however, didn’t matter.  As Justice Stevens pointed out (correctly, under the aforementioned precedent), “it is . . . clear that a State may transfer property from one private party to another if future use by the public is the purpose of the taking.”  And because “use by the public” has been redefined as “public purpose,” which has then essentially been interpreted as “benefitting the Government,”* the transfer of Suzette Kelo’s house and property to the Government, who was then supposed to transfer title to Pfizer (a decidedly private organization), there was no constitutional issue with the transfer.

The striking part of Kelo, and the precedents upon which it rests, is the ease with which at least some Supreme Court Justices have amended the Constitution.  Justice Stevens acknowledges that for the first 100 or so years of the nation’s existence, the Fifth Amendment meant “public use.”  The “interpretation” Stevens discussed in Kelo was not a reinterpretation, however.  It was a redrafting, as Stevens admits in so many words.  Unlike many cases in which the Court attempts to interpret the meaning of a word or phrase, the Court did not try to argue that “use” meant “purpose” at the time of the Constitution’s ratification.  Rather, it merely changed the words.

This may seem nitpicking, but the distinction is important.  If a reasonable argument exists that “use” meant “purpose” at the time of ratification, then it is certainly possible (though incorrect, in my opinion) that the Court’s interpretation is correct.  But Stevens did not argue that in Kelo; instead, he stated that the Court reversed course because [the Public Use Test] proved to be impractical given the diverse and always evolving needs of society.”  Thus, the Court did not merely decide that they had gotten the meaning of a word wrong.  They decided that times had changed and with it, the Constitution must, too.

And so it is entirely appropriate that the Supreme Court has now rewritten a statute by re-defining the meaning of the statute’s words during the 10 year anniversary of the Court’s most publically known affirmation of the same principle.  Ten years ago this week, Justice Stevens acknowledged announced that the Court had officially changed the text of the Constitution from “public use” to “public purpose.”  Yesterday, the Court announced that it has no qualms about changing statutes, too and with it, established that we are not, in fact, a government of laws.

  • “Benefitting the Government” is my own interpretation and is not a quote from Justice Stevens or the Court. The Court determined that increased tax revenue from the corporation, new jobs, and housing, in addition to the perceived benefits of “redevelopment” constituted “public purpose.”

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