No, NY Times, “Four Little Words” Should Not Be The Headline

The Supreme Court hears oral argument in King v. Burwell today, and if you are guided by the NY Times headline, “four little words” (“established by the state”) are the key to the case. That way of framing this case makes this latest effort to gut Obamacare seem quite reasonable. In fact the issue is the appalling eagerness of four (or more–there’s the worry) justices to act like middle-schoolers and not even wait for the appeals courts to issue conflicting opinions that would create an actual issue at stake. The issue is the willingness of so-called conservative justices to abandon long-settled legal principles such as standing–at least three of the plaintiffs have no actual beef with the Affordable Care Act because they are actually eligible for tax credits, i. e. subsidized health care. But the Supreme Court is willing to ignore the requirement of an “actual case or controversy” if it suits their agenda.

The larger issue is, should four perhaps ambiguous or poorly drafted words out of–as Republicans loved to point out–an almost thousand-page bill be torn utterly out of context to send the law into a death spiral. The ACA clearly provided for mechanisms to insure health insurance availability in all fifty states. And Antonin Scalia has coauthored a book, Reading Law, with Bryan Garner in which basic principles of interpreting laws are unambiguous, such as: “presumption against ineffectiveness: [an] interpretation that furthers rather than obstructs the document’s purpose should be favored.” And “whole-text canon: the text must be construed as a whole.” Furthermore: “harmonious-reading canon: the provisions of a text should be interpreted in a way that renders them compatible, not contradictory.” Those are reasonable and certainly conservative legal principles–will the Supreme Court uphold them?

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