In ACA Case, Context is Key

WASHINGTON -- As with everything else here these days, the talk about the Affordable Care Act case before the Supreme Court this week will focus on ideological splits: Will any conservative justice join the four liberals all but certain to back the administration?

In fact, the correct conservative legal position would be to rule for the administration.

First, it would demonstrate greater deference to the constitutional rights of states within a federal system. Second, it would reflect a restrained conception of the judicial role, respecting statutory language rather than legislating from the bench.

The case, King v. Burwell, concerns the availability of insurance subsidies in the 34 states that opted for federally run insurance exchanges rather than setting up their own. A subsection outlining how to calculate these subsidies refers to an "exchange established by the state."

Thus, the argument of those out to destroy the law: If Congress wanted to subsidize customers in federal exchanges, it would have done that. So, for a statutory strict constructionist, case closed.

Not so fast.

I'll dispense with the statutory interpretation issue first, and take guidance from Justice Antonin Scalia, an undoubted conservative, who literally wrote the book on statutory interpretation.

Scalia's approach is termed "textualist," in contrast to the loosey-goosier "purposivist" method of those who see the court's role as reading a statute in light of its underlying legislative intent. A purposivist would have no trouble deciding this case: The Affordable Care Act is designed to cover as many uninsured as possible.

But a good textualist would rule for the government, too, looking solely to the structure and language of the law. First, "it is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme."

That language comes from the Supreme Court's 2000 ruling rejecting the Food and Drug Administration's bid to regulate tobacco. It was written by former Justice Sandra Day O'Connor, and joined by Justices Scalia, Anthony Kennedy and Clarence Thomas. (Chief Justice John Roberts and Justice Samuel Alito weren't yet serving.)

...continued

swipe to next page