Immediately after Burwell was released yesterday, the conservative world alighted with a mania for criticizing the twisted logic Justice Roberts used to justify upholding a key prong of the Obamacare legislation. The argument goes like this: Roberts ignored the obvious TEXTUAL meaning of the statute in order to uphold its broad INTENT. Conservatives are SUPPOSED to put the text of the law on the highest pedestal, as part of their ordinary judicial philosophy. The Chief Justice, therefore, abandoned a fundamental tenet of conservative judicial philosophy in order to cater to popular opinion. But, Roberts actually adopted the most textualist position available.
Here is the problem: the Supreme Court always considers Congress’ intent when it is trying to interpret ambiguous wording in a law. The critics thought Roberts chose congressional intent OVER the plain meaning of the text. But, what he actually did, was to use congressional intent to cast doubt on whether the meaning of the text (which looked facially unambiguous) was actually unambiguous. After determining that there were actually good reasons to think that the text could mean more than one different thing, Roberts determined that the textual interpretation that was most consistent with Congress’ intent was appropriate.
Pure textualism doesn’t make sense. Words simply don’t have absolute, unique, and unchanging meanings. Words are fluid, and loaded down with subtle connotations that can often only be truly ascertained in context. Suppose I say that you are driving me up the wall? Those words have a clear, obvious meaning in the English language. But you aren’t literally driving me up a wall. The language is figurative, and depending on the context, it could mean that I am frustrated with you, or that you are blackmailing me, or it could mean that someone else is frustrated (if I am quoting them). It could even mean the exact opposite, that I am not frustrated at all, if I were to precede it with the statement that everything that follows means the opposite of its ordinary meaning. This last scenario is essentially analogous to what Roberts saw in the Obamacare legislation.
Let’s delve a little deeper. The petitioners in Burwell were a group of people who were cruelly forced to accept government subsidies to help them pay for their health insurance. In order to sue for the invalidation of a statute, you have to prove that the statutory provision in question harmed you in some way. The Burwell petitioners argued that the hated subsidies decreased the percentage of their income that would be required to purchase health insurance below 8%, and thereby destroyed their hopes of being exempted from the individual mandate. In other words, without the subsidies, they would not have been required to purchase job-killing Obamacare insurance from a private insurance company.
The petitioners found a few ill-chosen words at the back of the law, essentially in an appendix discussing the nitty-gritty rules for the payment of subsidies, which seemed to say that subsidies were only available to individuals who purchased health insurance through an exchange established “by the state.” Petitioners had acquired their insurance through an exchange set up by HHS after the state government declined to set one up. Therefore, they were not eligible for a subsidy.
It seems straightforward, unless you read the rest of the law and notice that in the section that sets up the fundamental structure of the law, this is nowhere to be found. Then, you notice that enforcing the provision as it seems to be written would result in the entire law falling apart, and you notice the likelihood that no congresspersons actually read the appendices before voting for the law. You notice that enforcing the provision as written would result in catastrophe for millions of Americans that could only be prevented by the parties of congress working together on a contentious issue. Then, you notice another tiny provision in the law that seems to be a safety valve: If the state declines to set up an exchange, HHS shall set up “such an exchange.” What does “such an exchange” mean? Does it mean “an exchange established by the state?” According to the Supreme Court, that is exactly what it means.
Obviously, HHS cannot actually set up an exchange set up by the state. But, that isn’t the question. The question is whether Congress could order HHS to do so, and write a law that depends on the legal fiction that the exchange set up by HHS was actually set up by the State. It turns out that Congress is indisputably allowed to do exactly that, and the only question is whether that is what they intended.
In other words, the Question Presented to the court was not whether “established by the state” means “established by the state or federal government,” but whether “such an exchange” means “an exchange established by the state.” Justice Roberts actually took the most textualist route of all, declaring that “such an exchange” meant EXACTLY what it was referencing.
Sometimes Profound 