It’s déjà vu all over again. President Obama’s comments about King v. Burwell during a press conference at the G-7 summit in Germany earlier this week echo those he made when the Affordable Care Act was before the Supreme Court in 2012.
Putting on his constitutional-lawyer-in-chief hat in 2012, Obama said, “I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”
Apparently, Obama believes that as long as a majority in Congress agrees, they can do anything they want, no matter how unconstitutional.
Obama mostly won that case, and flash forward three years, he’s trying to shame the justices into ruling in his favor again. This week he said King v. Burwell—a challenge to the Obamacare tax subsidies—should be “an easy case” and one that “probably shouldn’t even have been taken up.” He claims that:
“Under well-established statutory interpretation, approaches that have been repeatedly employed—not just by liberal, Democratic judges, but by conservative judges like some on the current Supreme Court—you interpret a statute based on what the intent and meaning and the overall structure of the statute provides for.”
Obama says the Court should do what “most legal scholars who’ve looked at this would expect them to do” and that he is “optimistic that the Supreme Court will play it straight when it comes to the interpretation.”
First of all, the president’s claim that the Court shouldn’t have even taken up the case ignores the fact that two federal appellate courts reached opposite conclusions on the fundamental issue at stake. It is “Constitutional Law 101” that the Supreme Court is responsible for resolving disagreements between the federal courts of appeal, and cases involving such conflicting holdings, especially on important pieces of legislation, are the most likely cases to be taken up by the Court.
Second, it’s the Obama administration—not the challengers—that have the principle of “statutory interpretation” exactly backwards. The statutory provision at issue limits the availability of federal tax credits only to individuals who purchase health insurance on an exchange “established by the state.” When a majority of states chose not to set up exchanges, the administration extended these tax credits to those who purchase insurance on the federally-run exchange.
Obama is ignoring the first rule of statutory interpretation: Read the statute. The text of the statute is not on his side. Instead, the administration follows the example of Humpty Dumpty in Lewis Carroll’s “Through the Looking-Glass” that “when I use a word … it means just what I choose it to mean.” For the administration, “up” means “down,” “stop” means “go,” and “state” means “state plus federal government.”
The administration argues that a cramped reading of the statute (that is, actually interpreting the words to mean what they say) frustrates its purpose of expanding insurance coverage and that the Court must look at the broader context of the law. But it is the text of the law, rather than context or the aspirations of certain members of Congress for the law, that must be enforced.
In any event, even if one were to ignore the plain language and look at the “intent and meaning and the overall structure of the statute” as Obama urges, the administration should still lose. The evidence established in the case documents that Congress intentionally structured the subsidies this way to encourage states to set up exchanges. As the challengers point out in their brief, “the conditioning of tax credits on state-run exchanges” was considered a “robust” incentive that would accomplish that goal. The administration just didn’t believe that states would turn down billions of free federal dollars.
Obama and other supporters were apparently completely taken aback when a majority of states refused to take the financial bait and set up state exchanges. The administration has been scrambling ever since to convince the public and the courts that what actually happened didn’t really happen, and that they intended all along to provide subsidies through the federal exchange, too.
The president is not alone in his effort to intimidate the Court to rule in his favor. The Major newspapers and many others have issued dire warnings that a ruling against the administration would signal a death knell for the reputation of the Roberts Court. But the real death knell would be if the Court ignored the plain language of the statute because of the obvious political and other implications and opted to rewrite the law to achieve the result the administration wants.
In the best interests of constitutional government, the justices should tune out these attempts to bully the Court. As Michael Carvin, the challengers’ lawyer argued, “This case may be socially consequential and politically sensitive, but that only heightens the importance of judicial fidelity to the rule of law.”
