fbpx

Meaning and Consequences in King v. Burwell

Supreme Court Hears Case Challenging Obama's Affordable Health Care Act

Jack Balkin has made an interesting observation about the argument in King v. Burwell:

One of the strongest arguments for the government’s position in King v. Burwell has been based on consequences: if the Supreme Court denied insurance subsidies to customers on federal exchanges, the consequences will be disastrous both for insureds and for the states.

But he goes on to note that not all the justices agree on the consequences, pointing out that unlike some of the other justices, Scalia thinks that Congress would fix the statute if subsidies become unavailable on federal exchanges. Balkin thinks this disagreement may prove a problem for the success of the government’s argument. I think the disagreement provides yet another reason that arguments based on such consequences have no place in the judiciary’s determination of the meaning of a law.

In my view, the meaning of a statute, like the meaning of a constitutional provision, is established at the time it was enacted. The future behavior of Congress does not bear on this meaning. While some statutes may contain ambiguities and vagueness, we have legal methods of interpretation, like canons of interpretation, to help interpret them. In some contexts, consideration of consequences may possibly be part of an argument about Congress’ intent, but that is not what Jack seems to mean here. Congress’s capacity to make changes to the statute in subsequent years does not bear on any intent relevant to the statutory meaning of the issue in this this case—whether subsidies are available on exchanges established by the federal government, when the text on its face makes them available only to those established by the state.

Jack’s observation about the radical disagreement of judges on consequences provides yet another reason why judges should not consult consequences per se. It is true that judges may disagree about more traditional legal materials as well, but these materials are historical, empirical facts that have the possibility of an objective answer, just like other facts. In contrast, consequences are a predictive, not historical matter: there is not a fact of the matter at the current time. Congress may or may not fix the statute if it is struck down. And these predictions are thus likely to be more dependent on matters like the degree of one’s trust in the current Congress, which surely turns in part on its ideological proximity to one’s own views. The Solicitor General’s incautious ridicule of this Congress at oral argument provides a paradigmatic example of the problem.

Moreover, judges are experts in legal materials. That is why Alexander Hamilton was comfortable giving them the responsibility for judicial review. But judges have no special ability at prognostication.

Two caveats apply: First, nothing said here suggests that predicting policy consequences should have no place in politics more generally. I am a welfare consequentialist in political philosophy and believe that we can improve politics through the use of modern information technology to predict the consequences of policy. But these tools are best left to institutions other than the judiciary. Consequentialist thinking in the judiciary will tend to unravel their distinctive legal expertise, because it will make them more likely to indulge in their ideological priors.

Second, in King v. Burwell, one of the government’s arguments derives from the administrative law doctrine called Chevron that it is the executive’s place, not the judiciary’s, to resolve ambiguities in statutes. I am not an enthusiast for this doctrine, and I have some skepticism that it applies here. But if it does, the executive might be able to take consequences into account in its policy decisions about how to apply the statute in the interstices created by ambiguity.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on March 05, 2015 at 12:08:54 pm

John:

Absotively and Posilutely!!!!

As I argued below with Nobody.really, consequentialism is for the Legislative NOT the Judicial branch. Indeed, it is the sole basis for Legislative debate (at least theoretically). When the Judiciary ventures into such consequentialist realms, it arrogates to itself the role Constitutionally assigned to the Legislature, whether it is cognizant of this or not.
Many of us believe that the Judiciary is cognizant of this fact, but simply drunk with its own institutional power, chooses to craft *clever* little linguistic artifices to justify and sustain this power.

read full comment
Image of gabe
gabe
on March 05, 2015 at 12:24:41 pm

So the likely holding should the government wins would be, "If the Congress creates a large enough unconstitutional burden on the People, the Court must ignore the unconstitutionality."

So much for the old principle, "Let Justice be done though the Heavens may fall."

read full comment
Image of Jeff Heck
Jeff Heck
on March 05, 2015 at 14:31:41 pm

The moral hazard here (i.e., the consequences of consequentialism) seems obvious: larger and larger acts of legislation, in the hope that judges will determine that a law is 'too big to fail.'

read full comment
Image of A B
A B
on March 05, 2015 at 15:08:53 pm

1. Suppose the a Justice (or a judge in general) believes a statute as enacted will have bad consequences. This is directly relevant to statutory interpretation only to the extent that it could help show that Congress could not possibly have intended these consequences (what I'd personally consider the minimum threshold for adopting a non-literal reading of the law).

2. The question ought to be not whether Congress will fix any problems that arise from its own statute, but whether Congress has the power to fix the problems. The Court (and courts in general) are not supposed to second-guess the legislature. Let's assume the problems occur, and that Congressional Republicans will definitely decline to fix them. That would still be a valid policy choice by Congress, which does not create a problem with the law. As far as I can tell, the US Left genuinely believes the Court should allow the Executive to "fix" a law because the People chose to elect a Congress who is opposed to the fix.

read full comment
Image of Lior
Lior
on March 05, 2015 at 15:41:45 pm

Luv'd it!! that hits it on the head; so O-care is too big to fail - yep!

Bet your bottom dollar that Amnesty will also be too big to fail!

read full comment
Image of gabe
gabe
on March 05, 2015 at 15:45:14 pm

Yes, but would you agree that the Left also *expects* the court to "fix the law" when it deems it appropriate. Here I am thinking of a number of school funding cases where in Missouri (for one and soon to come in Washington State) the State court decreed that the Legislatures law funding the schools was insufficient and the State Court therefore decreed *higher taxes* - the Supreme Black Robes allowed this.

read full comment
Image of gabe
gabe
on March 05, 2015 at 16:53:05 pm

The cases in Missouri and Washington were based on interpretations of the State Constitutions, so of course SCOTUS stays out of them. For example, article IX of the Constitution of Missouri provides in Section 1(a) that there be free public schools, and in Section 3(b) that the State Assembly must fund them enough to run an eight-month school year, but in any case spend at least 25% of annual State Revenue on the school system. There is nothing like this in the US Constitution. More over, these lawsuits are not about "bad consequences" in the policy sense (say, a "death spiral" in the insurance market) but rather about an alleged failure of the State Legislature to follow the State Constitution. That's something courts are emphatically supposed to deal with.

Suppose the Assembly fails to discharge its obligations (say by not funding the schools enough, or by creating public schools that are so bad as to be basically worthless). What remedy is available to the State Supreme Court? I have no opinion on Missouri law; but it's not inconceivable that when the Legislature fails to enact laws that the Constitution specifically directs it to enact, the Court can do something instead.

Note that the US Constitution generally only says what Congress may do, but never requires Congress to do anything. Congress must approve all appropriations, but it doesn't have to. For example, it has the power to maintain a Navy, but isn't required to do so. As far as I can tell the only spending Congress is required to authorize is the salaries ("Compensation") for its members, as well as for the President and and the Supreme Court.

Regarding the US Left, yes, they generally think that the Executive and the Courts should interpret laws according to their purposes rather than their literal terms. Breyer acknowledge this during oral argument yesterday. To me this carries an obvious weakness: who gets to decide the "purpose" of the law (to the Left it is they themselves). But this is not the argument we are criticizing here. The argument discussed above, made by amici but never by the Government itself, runs roughly as follows:

We have two possible interpretations of the law (literal and non-literal). The literal interpretation may cause some bad outcomes. But the 114th Congress is unlikely to change the law to deal with the bad outcomes (because of the personnel who were elected). Therefore, we must believe that the 111th Congress could not have intended this interpretation.

To me it seems obvious that what the 114th Congress is or isn't going to do for political reasons shouldn't be relevant to the question of what law the 111th Congress enacted.

read full comment
Image of Lior
Lior
on March 05, 2015 at 18:04:21 pm

"...but it’s not inconceivable that when the Legislature fails to enact laws that the Constitution specifically directs it to enact, the Court can do something instead."

It is not only conceivable, it is likely - and therein, I think lies the problem. I was not familiar with the 25% funding requirement in the Missouri constitution, yet did not the State Court, in this case, mandate higher taxes. If this is so, then I would submit that the State court exceeded its authority. Should not the remedy have been for the court to direct the legislature to meet its constitutional obligation - but acknowledge that the Legislature is to decide the policy options (funding options) that are within its purview.

Perhaps, a better example is in Washington where the state constitution mandates that education is the primary duty of the state. Washington Courts are now threatening to hold the Legislature in contempt because the Court is unhappy with school funding levels.
Who is to decide what is appropriate level of funding? Is this not a political decision? Who decides what meets the "primary" requirement? Must it mean that at least 50+% of state funding allocations go to the schools - or must it simply be the highest allocation among various allocations that the Legislature must make. It is not the role of the Courts to make such political determinations. and these decisions by the Court(s) are in large measure consequentialist (if one reads the arguments before and by the court).

But yes, we do agree that what the Congress does or does not do is (or ought not to be) any concern of the Court.

read full comment
Image of gabe
gabe
on March 05, 2015 at 18:15:50 pm

It is evident and obvious that if the Supreme Court decides for the government based on consequentialism it is merely extending its ever expanding role as ruler(s) of this country making our form of government an oligarchy. The concept of our being a federal republic has been and continues to be subsumed as the Court continues to take advantage of the due process clauses in the fifth and fourteenth amendments to act as the country's sovereign.

read full comment
Image of Charles DiGiovanna
Charles DiGiovanna
on March 05, 2015 at 20:13:21 pm

Usually when computer modelling is used to test a theory as discussed here, the act of analyzing and creating the model usually proves more useful than the execution of the model itself. The environment being modelled is too complex for a good computer model. Too many variables. Too many actors. Too many human beings interacting, both individually and in groups. The analysis to create the model would be quite useful though.

read full comment
Image of Scott Amorian
Scott Amorian
on March 05, 2015 at 23:26:02 pm

The comment mixes two different cases. A state trial court found the funding to be inadequate and the legislature passed a new law, but did not raise taxes. The trial court decision was not upheld on appeal to the state supreme court. A federal district court found the Kansas City school district in violation of the Constitution and as part of the remedy for that violation imposed higher taxes than state law allowed. That federal court decision was upheld by the United States Supreme Court.

read full comment
Image of Ashland
Ashland
on March 06, 2015 at 03:47:38 am

Over the past Century or so the Left has gotten all 10 Planks to the their Communist Manifesto (albeit in modified form) injected into the fabric of the American society. This has been accomplished not only with the aid and abetting of bad laws as well as bad intentions but with the help of Supreme Court Justices who have found ways to pound square pegs into round holes. In essence,the Constitution,property rights and the rule of law are dead in America and has been supplanted by the rule of men. Some of the last,as Mr.Obama called them,"fundamental changes to America," to be implemented is the bringing about the complete control of the American healthcare system by the Federal Government and the weakening and eventual ending of the 2nd Amendment Right of citizen's to maintain and bare firearms. Along with permitting many Executive Orders,many of which are blatantly unconsitutional if not illegal,I am sure that the Justices,in their learned ways,will again,find a way to accommodate socialized medicine into our everyday lives.

read full comment
Image of libertarian jerry
libertarian jerry
on March 06, 2015 at 10:02:57 am

The real problem with judges considering the consequences of a given statutory interpretation is that it risks crossing the line from the judicial power to the legislative power. While Article III grants to the Supreme Court (and the inferior Article III courts) all of the judicial power, that power does NOT extend to the revision of statutory language. A Supreme Court Justice who is willing to rewrite an otherwise unambiguous statute because of fear of adverse consequences is intruding upon the exclusive turf of the Congress. And the fear that the present Congress might not be willing to "fix" the problems which a judicial decision might (or might not) cause cannot serve to expand the authority of the judiciary. Rewriting statutory language by the Court based on perceived adverse consequences is an illegitimate exercise of the legislative power and a violation of separation of powers.

read full comment
Image of Daniel Artz
Daniel Artz
on March 06, 2015 at 10:28:47 am

The Court, taking into account consequences of a law by statutory interpretation, is merely an extension of the Court's continuing transformation from one of "referee" to that of sovereign, i.e. the ongoing transformation of the Court to the role of oligarchs. The fact that any number of its members view every opportunity to decide through an ideological prism rather than through the filter of the Constitution is not debatable.
During the last half of the 20th century Its behavior related to the commerce clause, substantive due process and judicial review and the fact that the decrees of its unelected members with lifetime terms are beyond appeal are all consistent with the concept of an oligarchical form of government. The federal republic originally created by our Constitution has long since been lost.

read full comment
Image of Charles DiGiovanna
Charles DiGiovanna
on March 07, 2015 at 12:37:44 pm

Ginsburg has often said that the courts should act in dialogue with Congress, pointing her influential dissent in the Lilly Ledbetter pay discrimination case in 2007. When a majority of her colleagues on the court used a cramped and legalistic definition to rule against the Goodyear Tire worker who had only belatedly learned she had been paid less than her colleagues for decades, Ginsburg urged Congress to step up and clarify the law. “The ball is in Congress’s court,” she wrote in her dissent.

Crazy old broad.

read full comment
Image of z9z99
z9z99
on March 07, 2015 at 12:52:16 pm

Justice Ruth Bader Ginsburg (aka the Notorious RBG) has openly disagreed with how the court handled Roe v. Wade. Speaking to the ruling overstepping its role, Ginsburg felt that it “moved too far, too fast,” with the underlying opinion that it should be the states that are given the power to decide these legislative matters for themselves versus the Supreme Court deciding it for them (especially given that the Supreme Court should not have legislative power within the system of checks and balances).

From a Planned Parenthood story on Roe v. Wade.

read full comment
Image of z9z99
z9z99
on March 07, 2015 at 14:28:49 pm

Z:

I had heard that some on the Left agreed with the sentiment expressed above - but I did not know that the crazy old broad agreed as well.
Interesting that such an opinion no longer holds for the "inebriated one" at least in the matter of SSM.

read full comment
Image of gabe
gabe
on March 08, 2015 at 11:49:18 am

[…] Meaning and Consequences in King v. Burwell […]

read full comment
Image of Stan Evans, RIP | Freedom's Floodgates
Stan Evans, RIP | Freedom's Floodgates

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.