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Mike Rappaport


Megan McArdle on King v. Burwell
Michael Ramsey

At Bloomberg view, Megan McArdle: Obamacare's Intent? Just Read the Law (responding to this prominent article by Robert Pear in the New York Times: Four Words That Imperil Health Care Law Were All a Mistake, Writers Now Say).  On the claim that the statutory language (apparently limiting subsidies to state-run exchanges) was a drafting mistake:

The government has not made [Pear's] "drafting error" argument in either its brief or oral argument; instead the defendants argue that "exchange established by the state" is a term of art that includes exchanges not established by the state. There's good reason for this. The "drafting error" argument requires admitting that at some point "established by the state" was deliberately written into law to mean, well, exchanges established by individual states, something that the government has no interest in saying, because contrary to apparently popular belief, "drafting error" is not a magic word that forces the Supreme Court to give you a mulligan. As [Jonathan] Adler points out, Elena Kagan recently wrote in another case that, "This Court has no roving license, in even ordinary cases of statutory interpretation, to disregard clear language simply on the view that (in [the IRS’s] words) Congress 'must have intended' something broader." 

Agreed.  The remedy for a drafting error is for Congress to fix it, not for the Court to fix it.  (The so-called absurdity rule, allowing courts to fix, in effect, typos, is entirely different: giving the language its natural meaning here may be bad policy but it isn't absurd in the sense of being incoherent or nonsensical).  The problem is that once courts start "fixing" things, they inevitably begin considering what they think it the right policy answer -- something courts aren't well suited to assess and in any event aren't empowered to decide.

She continues:

However ... even if the court were inclined to broadly rewrite statutes to what the legislators wanted them to be, none of Pear's interviews would carry any weight toward that end. The Supreme Court isn't much interested in post-hoc statements of legislative intent. As Justice Antonin Scalia wrote in Pittston Coal Group v. Sebben: "Since such statements cannot possibly have informed the vote of the legislators who earlier enacted the law, there is no more basis for considering them than there is to conduct post-enactment polls of the original legislators."

This strikes a lot of people as crazy, including, obviously, many reporters. I mean, you have the legislators and staffers right there! Why not just ask them what they meant, rather than trying to puzzle it out from the statutory language?

Actually, this is not crazy, but very wise. Memory is incredibly fallible, especially about stuff you're highly motivated to believe.

Also agreed.  You don't have to think people are lying to think they are unreliable.  For this reason also we should be somewhat skeptical about post-ratification statements by the Constitution's framers as evidence of the Constitution's meaning, especially when made in the midst of a political debate.