Affordable Care in 140 Characters or Less

June 25th, 2015

Today’s Supreme Court decision in King v. Burwell, a case challenging subsidies for individuals residing in states without state created health insurance exchanges, provides an interesting glimpse into the current operation of the Supreme Court as well as the relationship between the Court and the Congress.

Chief Justice John Roberts, who must have truly wonderful insurance (lucky him), presented the Majority Opinion in customary fashion reading aloud from the opinion as it was released to the public.  In the opinion, he acknowledges that the most charitable thing one can say about the law under the circumstances is that it is poorly written.  Despite that, evidently he and five other members of the Court elect to ignore a few inconvenient words in the statute to preserve what the justices imagine must be the actual intent of the law.

Afterwards, sitting next to Chief Justice Roberts, Justice Antonin Scalia read his own dissenting opinion which was a blistering assault on the majority decision.  Scalia isn’t known to mince words, but this time he’s clearly outdone himself describing the ruling as “wonderfully convenient” and “interpretive jiggery-pokery.”

In his dissent, Scalia expounds on this adding that with the Majority Opinion “[w]ords no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’” He also notes that “[n]ormal rules of interpretation seems always to yield the overriding principles of the present Court:  The Affordable Care Act must be saved.”  Given that, Scalia offers a new moniker to the statute from the often used “Obamacare” to “SCOTUScare.”

In what is likely to become a new norm in cases like this, Scalia signs off with “I dissent” rather than the traditional old fuddy duddy and certainly outdated “I respectfully dissent.”  After all, we live in a “progressive” age where it’s much more socially acceptable to lay all your cards on the table and call it like you see it than to feign an archaic attempt to appear polite.

Roberts’ reasoning and Scalia’s dissent offer an interesting idea.  Since the current Court doesn’t seem that interested in the “plain meaning of the statute” mechanism for statutory interpretation but rather a broad overview apparatus, sort of “what the Congress probably was trying to do here” way of interpreting things, why do we need to continue to waste time and money crafting long unwieldly statutes (e.g., the Affordable Care Act is over 2,000 pages long)?!

Instead, why don’t we just move with the times in statutory drafting and keep things short and simple?

Case in point, if so much information can be conveyed on Twitter in 140 characters or less these days, why can’t Congress just produce laws the same way?

For instance, rather than drone on with pages containing in some instances clearly meaningless words, why not just tweet out the following for the president’s signature:  “Affordable Care Act—Citizens required to purchase health insurance or face penalty.” The details of this “act” could be expounded upon by the various government entities necessary to enforce it.

This little fix on how Congress operates could save time and money, and it would free up value Supreme Court time to deal with more pressing cases since it wouldn’t need to waste everyone’s time haggling over a few meaningless clearly inconvenient words in a lengthy statute.

Now that’s “progress.”



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