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The time is near: later this month the Supreme Court will issue its ruling on King v. Burwell. The case centers around the question of what the phrase “established by the state” means, and how it affects eligibility for subsidies.
Plaintiffs contend that the words take their literal meaning, only exchanges set up by the state are eligible for subsidies. The government’s position is that the words do not really mean what they say, and that the federal government is also included as a state for subsidy purposes.
The unique thing about this case is that the plaintiffs are not the ones attacking ObamaCare and trying to change it, its defenders are. The plaintiffs argue that the law should be applied as written, while ObamaCare’s defenders hope the Court will change the law to make it conform with how they want the law to work, instead of how it was written.
The staff that wrote ObamaCare have said that they never intended to limit subsidies to exchanges set up by the states. The only problem, this is exactly what they wrote! If the intention was for subsidies to flow from federal exchanges as well, it is up to Congress to change the law, not the Court.
Article III of the Constitution grants the judiciary branch the power to decide individual cases and controversies. Article III does not grant the Court the authority to change written law to have it conform with what the authors supposedly wanted it to say.
It is the duty of Congress to write the laws, and the courts to decide cases based on the written law, not what the supposed intention of the law. There are two main reasons for this. First, the intention of Congress is often difficult to ascertain, and more importantly,not all individual legislators have the same intention when voting on a bill. Second, legislators vote on the text of the bill that is in front of them, not on the intentions of the authors or sponsors. As Justice Scalia said during oral arguments, “I mean it may not be the statute they intended. The question is whether it’s the statute they wrote.”
ObamaCare is a poorly written law. In part because it was rushed through Congress without the normal committee hearings and floor debate, and in part because it is a monstrosity nearly a thousand pages long. The Democrats in Congress felt the need to rush the bill because it was both unpopular with the public and the Senate was about to gain another Republican member after the special election of Scott Brown.
The fact that the bill was hurried through Congress, and poorly written as a result, does not allow the Court to rewrite the law to conform with the possible intentions of its authors. If proponents of the law want to fix it, they need to go through the normal channels to fix legislation, Congress. It is not the Court’s job to “fix” poor law, and they should not be expected to do so.