06.25.15

King v. Burwell: An Exercise in Sound and Fury Signifying Nothing

By | Leave a Comment

westmoreland-tim_1This post was written by  Tim Westmoreland, a Professor from Practice at Georgetown Law.  His courses include legislation and statutory interpretation, health law, and the federal budget process.

Everyone within reach of an electronic device already knows that the Supreme Court has upheld the Affordable Care Act (ACA) again today. Tax subsidies can continue to assist low-income people in States that do not establish their own insurance exchanges. The death spiral has been dodged. Insurance pools will still be big enough to spread risks. Just turn on a TV and you’ll hear all about it.
So now maybe it’s time to say out loud that this was a stupid case. However much I disagreed with the plaintiffs in NFIB v. Sebelius two years ago, I never would have said that there were not important legal questions at stake. But King v. Burwell and its siblings were just pointless politicking. These cases were not about the fundamentals of statutory interpretation or of health and public health. They were just another attempt to take down the ACA by any means possible.  
It boiled down to this. On page 114 of this 974-page statute, there’s a sentence that defines the term ‘coverage month’ to be for insurance in an exchange “established by the State.”
Consequently, the plaintiffs argued, no subsidies should go to low-income people in States that had chosen not to establish their own exchanges and had relied on the Federal one instead.
This is the ultimate gotcha argument. The sentence on page 114, if narrowly and literally read, would bring down the system in most States. But the plaintiffs had the temerity to argue that was the intended purpose of the statute and that the Congress meant to encourage States to establish exchanges—or else.
Now, let me ask: If you intended to create a doomsday machine that would blow up the system unless something specific happened, would you put it on page 114? Would you number the doomsday section as “36B(c)(2)(A)(i)?” Would you hide it in the definition of the term “coverage month?” (As one observer recently replied to me, “This was already resolved in the movie Dr. Strangelove, ‘The whole point of a doomsday machine is lost if you keep it a secret’”).
This doesn’t pass the laugh/grimace test. It certainly isn’t a serious statutory construction claim.
To its credit, the Supreme Court majority kept a straight face as it went through the usual steps of the judicial reading of a statute.   They concluded that the term in context was ambiguous, that the structure of the ACA suggested a more comprehensive reading, and that the plaintiffs’ suggested meaning would create such anomalies as a formula whose calculation would always equal zero, a market with no qualified customers, and regular reports that would always have no real content. These are the usual tools of judges: Text, context, whole act.
At its best, King v. Burwell was a huge exercise in sound and fury signifying nothing. No grand new precedents were created. No constitutional principles were vindicated. No fundamental injustice was remedied. This is textbook stuff that has gone on in courts for hundreds of years. (It has the small ancillary benefit that those of us who teach statutory interpretation have a new syllabus entry that summarizes some of the basic methods, all in one place.)
But more fundamentally, this was a tremendous waste.
This litigation has cost time and money. It has diverted attention from the real problems of health care. It has created artificial work to make contingency plans for government agencies, insurance companies, and hospitals. And it has frightened millions of Americans—many of them frail and sick. Now that it is over, the Nation can get back to ongoing efforts to get uninsured people insured and to get insured people the services they need.
Professor Westmoreland recently participated in Georgetown University’s #AskaGUProf on King v. Burwell – see the video series here.

Posted in Health reform, Healthcare ; Tagged: , , , , , .

Comments are closed.

Stay Informed

Signup for our mailing list and stay up to date on the latest happenings at The O’Neill Institute

Or sign up for our RSS Feed

The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

See the full disclaimer and terms of use.