The latest challenge to the Affordable Care Act maintains, in effect, that Congress authorized itself to establish insurance exchanges on behalf of the states, but wanted those exchanges to have no insurance to sell to no customers. It is not an easy position to defend.
So for conservative pundits, particularly those apparently uneasy with the baroque theory of legislative intent that was invented after the fact by the lawsuit's architects, a new justification has emerged. In this account, think of the Supreme Court as a schoolmarm: King v. Burwell offers the court an opportunity to teach Congress a lesson about how to draft statutes.
This theory, however, is highly unconvincing. It not only misunderstands the legislative process, but also demands huge costs for its "lesson" that would well exceed any possible benefits.
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The argument that, as Shikha Dalmia put it at The Week, the court should "advise the administration to go back to Congress to clean up the mess" has a certain superficial appeal. Congress could have avoided (an albeit manufactured) controversy over the availability of subsidies on the exchanges by drafting the relevant statutory language more carefully. So what's wrong with the court prodding lawmakers to do so?
Plenty, in fact. The court playing an English professor asking for further revisions might make a certain amount of sense in a parliamentary system, where a government would have every opportunity to make minor revisions or enact a coherent alternative measure. But in the context of a high veto-point system like ours, this kind of dialogue is much less likely to emerge.
In many circumstances Congress would be hamstrung from making any revisions, allowing an unnecessarily damaged statute to remain on the books. In the context of American institutions, it makes much more sense for the courts to make reasonable inferences about legislative purposes and make the statutory language consistent with it wherever possible.
But of course, in this case, such an approach would clearly produce a win for the government, not at all what conservatives want.
The limitations of the argument are particularly evident when applied to this specific case. The pundits urging the courts to throw the ball back to Congress make sure to take plenty of swipes at the legislative process that produced the ACA. "The only reason the court is confronting this huge mess, as Justice Antonin Scalia pointed out," asserts Dalmia, "is the unorthodox parliamentary tactics that ObamaCare supporters had to deploy in order to ram it through Congress."
Ross Douthat of The New York Times agrees, writing, "The textual problem with the law exists in the first place because the Obama White House didn't want to scale back its policy ambitions after Scott Brown's shocking victory, and pushed a creative end-around that avoided the necessity of more congressional votes but also precluded some necessary edits."
In other words, if Congress screwed up, why should the court bail it out?
This version of events omits a highly pertinent fact. Dalmia and Douthat conspicuously fail to fully explain the reason that Democrats were unable to harmonize the bill in conference: the Republican minority in the Senate would not allow them to hold another vote. The ACA's opponents implicitly treat the routine supermajority requirement imposed by congressional Republicans as a natural part of the legislative process rather than a highly unusual and unnecessary historical development. During most periods of history, the majority party would have been able to make final changes to the legislative language as it saw fit.
Dalmia's claim that "the administration is asking the court to hand it a victory that it couldn't obtain through the normal legislative process" stands reality on its head. A more accurate summary is that the Republican minority in one house of Congress prevented the majority from voting on a bill that went through a conference between the House and Senate, and now wants to use this as a justification to have its allies on the judicial branch gut the law.
Douthat's apparent belief that overturning the law would make the system more functional is deeply odd. Rewarding dysfunctional behavior doesn't strike me as an effective means of disincentivizing it. Far from the modest approach it claims to be, it represents a "stop hitting yourself" logic that doesn't have a great deal to recommend it as a theory of statutory interpretation.
Which brings us to the additional problem with the argument: as Solicitor General Donald Verrilli Jr. incredulously noted at oral arguments last week, the idea that this Congress would be able to fix a hole ripped open by the Supreme Court or pass an alternative is frankly absurd. If the court kicks the ball into Congress' court, it will promptly fire it right into the Potomac.
Perhaps this outcome would be defensible if it represented a fair reading of the statute. But the argument that the ACA doesn't make subsidies available on federally established exchanges is bad statutory interpretation wrapped up in historical fiction. The argument that the Supreme Court should deny effective health care access to millions of people to teach Congress a lesson is no more convincing than the rest of the arguments the law's challengers are throwing at the wall like so much spaghetti.
