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Conservative judges forget about original intent in striking ObamaCare subsidies

Justice Antonin Scalia
Justice Antonin ScaliaPhoto by Paul Morigi/Getty Images

Court of Appeals for the District of Columbia Circuit ruled earlier this week that an incomplete description of the insurance marketplace in one section of the Affordable Care Act should be strictly construed to deprive millions from receiving needed subsidies and doom the law to failure. Despite the absence of any evidence that the lawmakers who passed the law intended this outcome, and contrary to the IRS’ implementation of the statute, two conservative judges on the appellate court used what has been described as a “typo” to justify their statutory (mis)interpretation.

What ever happened to Justice Scalia’s rule of original meaning?

In a widely quoted lecture that Justice Scalia gave in 2005, he explained that he was an “originalist.” His manner of interpreting the Constitution or a federal statute is to “begin with the text” and then “to give that text the meaning that it bore when it was adopted by the people.” He rejected strict constructionism, colorfully explaining,

“I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably.”

Justice Scalia meet Circuit Judge Thomas B. Griffith , who wrote the majority opinion in Halbig v. Burwell.

Judge Griffith focused on one phrase in the nearly one thousand-page statute that allowed the government to provide tax subsidies to those who purchased their insurance through an exchange “established by the State.” No mention in that sub-section of the federal exchanges set up by Department of Health and Human Services, which steps in when a particular state chooses not to organize its own exchange. So Judge Griffith re-wrote the statute to say that tax subsidies were “only” available for the state exchanges, not the federal exchanges.

Never mind that the federal exchanges are referenced on equal footing with the state exchanges in numerous other sections in the text of the law; never mind that every state must either have a state or HSS exchange; and never mind that the entire statutory scheme of mandates and group ratings necessitates subsidies for all marketplaces so that people can afford the insurance they are required to carry, whether they buy it on a state or federal exchange, and that the IRS’ implementation of the law was reasonable and consistent with the intent of Congress when it passed the ACA.

And we don’t have to guess about the original intent of the framers of the Affordable Care Act. They are all still around, and none say there was a hidden intent to bury a poison pill deep within the text of the bill to forbid insurance subsidies for the federal exchanges. Indeed, when the Congressional Budget Office scored the ACA before its passage, federal exchange subsidies were included as costs, and no one gave it a second thought.

As it turns out, this outrageous example of conservative judicial activism will likely not stand for long. The three-judge panel that issued the ruling in Halbig consisted of two conservative Republican and one Democratic appointees. The circuit court will likely grant en banc review. And in light of Harry Reid’s breaking of the filibuster for judicial appointments late last year, President Obama was able to fill longstanding vacancies on that court, so that Democratic appointees are now in the majority, 7-4.

And the same day as the D.C. Circuit announced its ruling, the Fourth Circuit Court of Appeals in Richmond, Virginia ruled exactly the opposite on the very same issue.

But really, it shouldn’t require a judge appointed by a Democrat to reasonably interpret a statute. Even Justice Scalia could do that, at least one hopes he could, as an “originalist” who abhors sloppy legal work.