Let's ask Kathleen Sebelius what the law should say.

Photographer: Andrew Harrer/Bloomberg

The Heart of the Obamacare Case

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Beyond the technicalities of guns to the head and standing, a profound issue lies at the heart of the King v. Burwell case that the U.S. Supreme Court heard Wednesday -- and for a few shining moments, the justices debated it. That question can actually be put rather simply: What should happen when Congress writes a law with some internal incoherence? Should the courts assign a sensible meaning to the statute that makes everything come out right? Or should they follow the strict words of the law, and let the chips fall where they may?

To be sure, the liberal justices don’t want that to be the issue. Neither does Solicitor General Don Verrilli, and neither do the liberal law professors who want Obamacare to survive. All of them are clinging to the fiction that the text of the statute produces the conclusion they want. That view was on display as Verrilli doggedly insisted that the words “established by the state” don’t literally mean what they say, but rather mean “established by the state -- or by the federal government on its behalf.”

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But Justice Antonin Scalia, bless his soul, was having none of it. When Verrilli said that a statute requiring a death spiral for state insurance plans “cannot be the statute that Congress intended,” Scalia pounced. “Of course it could be,” he asserted. Or rather, the question wasn’t what Congress intended -- Scalia excoriates legislative intent as a source of meaning -- but rather “the question is whether it’s the statute they wrote.”

Verrilli tried to fight back by claiming the statute made sense. Scalia wouldn’t let it go. If the statute made no sense, he pressed, what then? “We will twist the words as necessary to make it make [sense]? That can’t be the rule.”

Now Verrilli said something smart. The court, he argued, should read the statute so it would make “a harmonious whole.” Scalia pushed back with the weak argument that this could only be accomplished when a reasonable reading of the words existed, which was not the case here.

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The rest of the argument on the other side depends on what Justices Elena Kagan and Stephen Breyer emphasized in questioning counsel for the challengers. Again and again they came back to the word “context.” Words make no sense without a context, they urged. And context should be used to impart meaning.

Of course, Kagan and Breyer didn’t go far enough. Context isn’t just a tool for understanding words. It should be a tool for understanding what the law is for, and giving effect to that purpose.

After all, why does the current case even exist? The greatest exertions on all sides haven’t found a convincing explanation for why one random provision of an enormously long and complex statute refers to an exchange “established by the state” instead of referring to the possibility of a federal establishment discussed elsewhere in the statute.

The best explanation is that the language is just a mistake -- an error that crept in during the complex drafting process. Most bills go through a reconciliation process between House and Senate versions, when mistakes such as these are often fixed. The ACA never went through reconciliation. Different versions were cobbled together. We may never know exactly what happened to create this anomaly. But an anomaly is what we have before us.

Scalia’s proudly and openly expressed view is that it isn’t the judiciary’s job to fix Congress’s mistakes. Interpretation for him is like a conveyor belt, and the court must simply take the product -- the words of the statute -- and apply them. To Scalia, the separation of powers underlies this basically modest vision of the judicial role.

In a simple world, he’d be right. If Congress messed up, the court could tell it so, and Congress could fix its mistakes.

But we don’t live in that world -- not remotely. The difficulty of getting Congress to do anything is vast. And Congress changes: The Congress that passed the ACA is long gone, and the new Congress wouldn’t fix the law if it could.

Given the costs of allowing errors to destroy whole statutes, courts should be assigned the role of fixing mistakes as part of the job of interpretation. For most of the history of statutory interpretation, going back to Aristotle, this was the dominant view. When the law doesn’t work, Aristotle advised, you should ask what a reasonable legislator would’ve done -- and do it. This approach serves justice.

It also doesn’t offend the separation of powers. If Congress doesn’t like the judicial fix, it can overcome its inertia and overrule it. Yes, that’s costly. But the cost must go somewhere, and it’s a lot better to place the cost on reversing a fix rather than on making a fix in the first place.

So long as humans make laws, humans will make legal errors. Courts should make them go away. That simple proposition is what really matters about the King v. Burwell case. And with a little luck, five justices will agree on an answer by the end of June.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net