The New York Times is the latest to make an in-depth investigation into the claims in King v. Burwell, the Libertarian lawyers’ challenge to the Affordable Care Act aka “ObamaCare” health insurance subsidies provisions, and to dismiss the claims as a concocted fraud. Four Words That Imperil Health Care Law Were All a Mistake, Writers Now Say.
A couple of quick points. First, this is the type of drafting error that is routinely corrected by legislative bodies through “technical amendments” to correct statutory language. It would take a one page bill to correct “four words” that Congress could quite literally pass in a few hours if we had a responsible Congress. It is not something that one takes to court — all the way to the U.S. Supreme Court no less — spending millions of dollars on litigating a drafting error. This exposes the “evil motive and intent” of the Libertarian lawyers pursuing this case. The claim is not brought in good faith.
Second, the Libertarian lawyers’ radical theory of statutory construction, based upon their fabricated record of congressional intent in this case, would radically alter the long-established rules of statutory construction if accepted as a general principle by the U.S. Supreme Court. It would literally call into question thousands of federal court precedents based upon existing rules of statutory construction.
The Court could limit its holding to this one case, as it did in Bush v. Gore, but that would undermine the credibility of this Court even further in my view. It would expose the “Felonious Five” as politicians engaged in extra-constitutional legislating from the bench, something already far too self-evident in the decisions of the Roberts Court.
