The blog in a nutshell

The blog in a nutshell

Wednesday, September 16, 2015

Problems with the Challengers' Post-Mortem in Burwell

[Again, I am going to write in stream-of consciousness now, and then edit and add links when I have time in the future.]

The Burwell challengers (not the plaintiffs themselves, who are not important people, but the architects of the litigation) have published an article summing up their affair.  I have not read it yet, but the abstract, unsurprisingly, indicates that they disagree with the opinion.  One of the challengers, Professor Adler, published a blog post about his article, in which he makes the following statement:

"[T]he majority not only used statutory context to resolve ambiguity, but to create the ambiguity in the first place." (Emphasis Adler's.)

There are three problems with this statement, which is the principle point of Adler's post.

First, the statement is factually wrong.  The question in front of the Court was not, no matter how loud the challengers claim, whether "State" included the federal government.  Although "State" sometimes does mean the federal government, the *context* of the ACA indicates that it does not, because State is elsewhere defined in a way that excludes the federal government.  Instead, the question was whether the "such Exchange," language in Section 18041 encompasses those Exchanges that are "established by the State."  And, as explained in my previous post, that is ultimately an ambiguous question absent any additional context.  This is particularly true if you are also allowed look at definitions as somehow not "context."  Here, the tax-limiting language at issue was "Exchange established by the State under [sic: Section] 1311" and Section 1311 defines an "Exchange" as one established by the State, and yet Section 18041 (the pertinent language that is really in dispute) gives the government a right to establish an "Exchange."

Second, it is not at all problematic that context could create ambiguity even if true.  That is because, outside of context, words and phrases don't actually mean anything.  And while one could read an isolated phrase and guess at or imagine context, it is a bedrock principle of law in the United States that courts interpret statutes as a whole, not isolated words or phrases.  So there's actually nothing wrong with context creating an ambiguity, even though that is not what happened here.  All an ambiguity means is that the language is susceptible to two or more meanings, rather than one precise meaning.  So, while one should generally try not to give meaning to language that appears to contradict the text - it's fair to say that it would be alot easier to construe statutes when you don't have to read the whole statute to determine whether a law which regulates birds actually also regulates fish because birds are later defined to include fish - it is quite normal for courts to construe language seemingly unambiguous devoid of context in an entirely different way given context.  Just this past term, the Supreme Court defined "a tangible object" to exclude fish, when fish are clearly both tangible and objects; the bill at issue was directed at financial fraud.  And the prior term, the Supreme Court defined the use of a chemical to give a rival a rash as not a "chemical weapon," even though the chemical was plainly used as a weapon, because the statutory context indicates that the law intended to prohibit weapons of mass destruction.

And third, Adler's created a false dichotomy.  He wants to claim that the ACA can't treat an "Exchange" to mean an "Exchange established by the State" because that would create an ambiguity, but not doing so would create a lot more ambiguities out of otherwise quite plain language *even under his interpretation*, such as can an "unqualified" individual purchase an insurance policy on an exchange, or whether an "Exchange" is only one established by the State (as plainly defined by Section 1311), and if so, what on G'd's earth "such Exchange" could possibly mean?  So it's not between "creating an ambiguity out of otherwise plain language," but instead selecting between language that is unambiguous in isolation but, despite being unambiguous,  conflicts with each other (Except it isn't even that, because of Point 1 above.)

Finally, although not the main thrust of Adler's point, I want to address another issue Adler raises in his post:

"Though Roberts conceded that “established by the State” is clear on its face and the only statutory text that speaks directly to the question presented, by the time he was done, he rendered that provision not only ambiguous but meaningless."  (Again, emphasis Adler's.)

Three very quick points here.  

One, the term is not meaningless: it references the requirement that the taxpayer purchase the exchange in a particular jurisdiction, i.e., the jurisdiction the taxpayer resides.

Two, as the Opinion points out, while there is a canon preferring the interpretation of a statute that renders no part of the statute either meaningless or superfluous, that canon is considered rather weak.  This is because, although one should not endeavor to repeat oneself or add unnecessary verbiage, people do this *all the time,* and particularly lawyers.  Indeed, although the judge I clerked for hammered it into me to be succinct and not repetitive, a former boss thought that good legal writing required one to repeat yourself ad nauseum to make sure the reader got the point.  Again, this wasn't the most well-written law, but Courts are not empowered to overturn or ignore laws merely because they think it was poorly written. 

Three, Adler claims that this was *the only provision* that answered the question Adler was asking.   I'm not sure this is true, because there's another provision that answers the question:  *such as*!  (It is sure easy attacking someone's logic when you can ignore their main argument, right?)  But that's almost certainly because there was no reason to *ask* the question that Adler was asking.  As even the dissenting Justices understood in arguing that the ACA was unconstitutional, either the subsidies are available everywhere, or there's no point to the exchanges.   It's easy-very easy-to criticize Adler.  But there's a broader problem I think lawyers and judges have in interpreting statutes and contracts:  often, a law or contract has nothing to say about a topic, either because they assumed it wasn't an issue or they simply did not think about it.  But judges and advocates alike nevertheless barrel toward the closest thing they can find to read an intent that simply is not there.  That is not interpretation, but divination, and it has no place in proper legislative interpretation.

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