Preserving Obamacare with a prescription of common sense

It was a busy week for the Supreme Court, and a very good one for liberals.

But let’s not focus on human rights, including the profound and welcome decision to recognize a right to same-sex marriage. Instead let’s discuss statutory interpretation!

In the Affordable Care Act (Obamacare) case, Kingv. Burwell, the Court had to decide whether a provision of the statute, which allowed tax credits – essential for the overall plan’s viability – to be paid to a taxpayer who had purchased insurance through “an Exchange established by the State,” actually authorized tax credits not only for taxpayers in the states that did establish these Exchanges but also for taxpayers in the many states – a large majority – that did not. In those states, as the statute provided, the federal government had filled the void left by state inaction and established an Exchange itself.

So the precise statutory question was “does ‘Exchange established by the State’ mean “Exchange established either by the State or the federal government’”? It might seem obvious that the answer is "no" – the federal government is not a state. For Justice Scalia, the answer was obvious, and it was indeed "no." Scalia says that the Court's answer -- "yes" -- "is of course quite absurd, and the Court's 21 pages of explanation make it no less so." (Dissenting opinion at 1.) That's pretty sharp -- though not the sharpest language Scalia has ever used. 

Despite Scalia, six justices said "yes," in an opinion by Chief Justice Roberts. In fact the question wasn’t quite as obvious, even as a technical matter, as Justice Scalia believed. For example, as Roberts says, the statute “defines the term ‘Exchange’ to mean ‘an American Health Benefit Exchange established under section 18031.” Section 18031 is the section telling states to set up these exchanges, but the states weren’t obliged to do so, and another section, 18041, tells the Secretary of Health and Human Services to “establish and operate such Exchange” if the state doesn’t. Then, since “Exchange” is defined as an Exchange established under section 18031, and section 18041 tells the Secretary to establish “such Exchange,” actually the Secretary is being told to establish “an exchange … under section 18031,” which, again, is the section authorizing states to set up exchanges. So it’s possible to parse the language to say that the federal government has been instructed to set up state exchanges. (Majority opinion at 11-12.)

It turns out there are a number of anomalous sections like this. Perhaps the most striking is the one that says that all exchanges are to report to the IRS the information necessary for the calculation of each person’s tax credit – a provision hard to understand if in fact people who purchased insurance on federal exchanges couldn’t get any tax credits at all. (Majority opinion at 13-14.)

But the real point, I believe, is not these technicalities, though they help Chief Justice Roberts to establish that the statute has enough ambiguity to be open for interpretation. The real heart of the Court’s decision is evident in this penultimate paragraph:

            Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. [The relevant section] can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt. (Majority opinion at 21.)

Roberts appears to believe that where the constitution does not set the courts at odds with the other branches of government, then the courts and those other branches are partners in governance. This is an old idea, dating back to the “legal process” school of the mid-twentieth century. It is by no means a charter for unchecked, freewheeling judicial rewriting of the statutes enacted by Congress; there will surely be many, many cases where the clarity of a statute’s words overwhelms arguments for reinterpretation that are less cogent than those in the Obamacare case.  

But this case does indeed create a precedent for the proposition that language by itself, however seemingly clear, should not be understood in a way that “destroys” what Congress meant to do. To this extent Scalia is clearly right: this case “will be cited by litigants endlessly,” though I don’t share his belief that the result will be “the confusion of honest jurisprudence.” (Dissenting opinion at 21.)

In fact the case is already not unique – this is at least the third decision Roberts has written or joined in the past two years in which the Supreme Court has departed from what arguably was the clear import of statutory words if read by themselves. The earliest  was Bond v. United States, decided in June 2014; there the Court decided, in an opinion written by Roberts, that a woman’s effort to cause a romantic rival to “develop an uncomfortable rash” by putting “two toxic chemicals” on the rival’s doorknob did not amount to the use of a “chemical weapon.”  The next was Yates v. United States, decided in February 2015, in which the Court held (though without a majority opinion) that a statute aimed at financial fraud, one of whose provisions punished the destruction of a “tangible object” with the goal of interfering with a federal investigation, did not cover the destruction of illegally-caught oversize fish.  The Supreme Court appears to be experiencing an epidemic of common sense!

These common-sense decisions reject an alternative approach that almost taunts Congress for its imprecisions. Instead, they tell us that we can, at least broadly, understand what Congress seeks – despite the skepticism with which some have come to greet this proposition. Just as clearly, they say that when we understand it we should support it (of course within the bounds of the constitution) even if the words Congress used don’t readily lend themselves to such a supportive reading. 

Thank goodness.

Why did South Africa let Sudan's president come and go without arresting him?

One of the more depressing news items lately has been the story of South Africa’s refusal to arrest Omar al-Bashir, the President of Sudan for whom the International Criminal Court has issued an arrest warrant. Despite that outstanding warrant, Bashir was allowed to come to South Africa for a meeting of the heads of state of the African Union, and when a South African court ordered that he not be permitted to leave until the court could decide what South Africa’s legal obligations to execute that warrant were, the South African government instead enabled him to fly out of the country. The Mail and Guardian, a South African newspaper, reports that this was the result of decisions at the highest levels of the government: “President Jacob Zuma and his key security ministers plotted to ensure Sudanese President Omar al-Bashir’s safe passage out of South Africa, flouting a court order and international convention,” it says. 

That all sounds like the South African government putting political ties with Africa (and perhaps domestic politics as well) above legal obligations, and indeed that’s broadly how Obed Bapela, described by the Mail & Guardian as “the head of the ANC’s international relations sub-committee and deputy co-operative governance minister,” justified it. The Mail & Guardian quotes Bapela: “We would have been seen as lackeys of the West. We had to choose between the unity of Africa and the ICC and we chose Africa. We said we can deal with the ICC later.”

But there’s a twist. According to a news24 article, while South Africa considered whether or not to let al-Bashir leave, Sudan did not just wait patiently. Instead, “shortly after Al-Bashir left for the African Union summit,” Sudanese forces surrounded the bases of South African soldiers who are stationed in Sudan as UN peacekeepers. Moreover, the article indicates, the Sudanese forces would have been much better armed than the South Africans, because – even though the South Africans are in the country under a UN mandate – Sudan has repeatedly refused to allow South Africa to fly in additional military equipment for its troops. Fortunately for the South Africans, according to a soldier’s message quoted in news24, “The battalion commander said after Bashir touched down safely in Khartoum, all the [Sudanese] troops were withdrawn.”

Now the reason that al-Bashir’s case is before the International Criminal Court is that the UN Security Council referred the case to it.  But the Security Council also must have provided the authority for the peacekeeping operation in Sudan, and thus for South Africa’s military presence there. Surely the UN was aware of Sudan's interference with South Africa's efforts to equip its troops fully. So if South Africa shrank from enforcing the ICC’s warrant in part because its troops were vulnerable to Sudanese pressure, isn’t that attributable at least in part to the Security Council itself?

One might ask, of course, why South Africa put up with this vulnerability, and why it decided to welcome al-Bashir at this meeting when he had for years been undercutting the South African soldiers stationed in his country. Certainly the Security Council is not solely responsible for the resulting crisis, even if South Africa’s ultimate actions were driven by concern for its troops. And in any event this fear may not have been the South African leaders' motivation; they may have been committed to defying the ICC all along, and if so then the reported Sudanese troop movements were just al-Bashir’s way of hedging his bets.

One more question: If, in fact, South Africa’s political leaders chose to send al-Bashir back because they feared his retribution against their soldiers, what should a South African court say about this? There are important reasons for a court to rule on the legality or illegality of the government’s actions, as a vindication of the rule of law. But an American court might answer that it should say nothing at all, because this kind of geopolitical, military maneuvering is beyond the courts’ competence – it raises “political questions” rather than judicial ones. An American court might also defer to the executive’s view that al-Bashir had head-of-state immunity while attending the African Union summit; that position may be relatively unpersuasive legally but a US court might defer to it because of the executive’s special responsibilities in the field of foreign affairs. 

South African courts don’t generally accept that there are legal questions that they shouldn’t rule on, nor do they tend to defer to executive legal interpretations, and that commitment to principle is deeply admirable. But if there was ever a case for a South African court to avoid confrontation with the executive branch, this one perhaps is it. 

How to read statutes and what legislators say about them

When courts interpret statutes, should they focus only on the text? That’s not a crazy idea; when we try to understand what someone else is telling us, we often focus on the words that person is using. The trouble with doing this in ordinary life is that often people choose their words imperfectly, so we routinely fill in many possible blanks and resolve many possible inconsistencies by looking at the context – who the speaker is, what the situation is, what body language and facial expressions went along with the words, and so on.

How do our habits in ordinary conversation carry over to reading statutes? One possible answer is that with statutes we have nothing except the words themselves. To speak just of federal statutes, only their words are voted on by and signed into law by the President. And since there are a lot of different people responsible for the process of formal enactment (all the members of Congress, plus the President), we can’t ask the various questions we would in interpreting conversation, because there are too many “speakers” to try to attend to. Following this logic, we would disregard what’s called “legislative history” – the record of who said what about the legislation under consideration. We would attend only to the text, or in other words we would be “textualists.” (Attending to the text may be quite a complex business, though; “textualists” aren’t by any means always “literalists.”)

But attending only to the text ought to strike us as very odd. If legislators speak to each other about proposed laws, and in the course of those debates they say “This law would mean X,” it’s strange that later on a court trying to determine whether the law does mean X would give little or no weight to the legislators’ statements. It is true that no one voted on those statements – only the statute itself gets voted on – but if those statements clarify what the legislators thought they were voting on, it seems self-defeating for judges seeking insight to disregard the legislators’ understandings. Most members of the Supreme Court in fact wouldn’t totally disregard them, but Scalia and Thomas generally would – and many judges today are hesitant to give much emphasis to what may be found in legislative history.

That wouldn’t be so odd if legislative history were misleading and unreliable – and so it has often been said to be. But is it? One way to find out would be to ask people in Congress whether they in fact rely on it. But until recently, it appears that no one had ever asked. Now there’s an exception (actually there are two, but the earlier study was evidently a much less extensive inquiry than the one I’m discussing). In two long articles, Abbe Gluck of Yale and Lisa Schultz Bressman of Vanderbilt describe their survey of “137 congressional staffers drawn from both parties, both chambers of Congress, and spanning multiple committees.” (Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stanford L. Rev. 901, 902 (2013); Lisa Schultz Bressman & Abbe R. Gluck, Statutory Interpretation from the Inside—An Empirical Study of Congressional drafting, Delegation, and the Canons: Part II, 66 Stanford L. Rev. 725  (2014).)

Among their findings: “Perhaps most importantly, legislative history was emphatically viewed by almost all of our respondents—Republicans and Democrats, majority and minority—as the most important drafting and interpretive tool apart from text.” (Gluck & Bressman, Part I, at 965). Overall their respondents appeared to see legislative history as considerably more useful than many of the technical rules of interpretation (the “canons” of interpretation) that courts often use. (Id. at 966.)

As Bressman & Gluck carefully note, it’s possible to argue that legislative history should be disregarded even if it is reliable. But its supposed lack of reliability has certainly been an important reason why many judges have turned away from it. So this study not only suggests that perhaps judges should look more receptively to legislative history in the future, but also raises another question: why did judges accept the attack on legislative history’s reliability as readily as they apparently did, without anyone having actually checked whether that attack was factually well-founded?

One answer, which I think fits broadly with what Gluck and Bressman believe (they write about our potential “evolution” towards a true “Age of Statutes,” Bressman & Gluck, Part II, at 725), is that we are all still learning how to interpret statutes. We are novices, and we are prone to become infatuated with ideas that on more sober examination will prove problematic. But our infatuations aren’t randomly distributed. Nature abhors a vacuum, and we are prone to fill the space of our ignorance with our predispositions and our preferences – and the battles over interpretation have surely had strong political overtones. We can’t hope that politics, or profound disagreements over values, will someday cease to affect adjudication. But we can hope that if stubborn facts point to the value of a method of interpretation, then we will find a way to honor those facts, and look elsewhere for the tools of the ongoing arguments we have about values. We can, at least, hope!

The rule of law and the rules governing American passports

This past Monday, June 8, 2015, the Supreme Court decided in Zivotofsky v. Kerry that a federal statute, duly passed by Congress and signed by President George W. Bush, could not compel the State Department to allow U.S. citizens born in Jerusalem to have their place of birth in their passports be listed as “Israel.” The Court decided that the President has exclusive (even though not really explicit) constitutional authority to recognize foreign nations; that recognition includes recognition of particular territories as within, or not within, those nations’ sovereignty; that while the U.S. recognizes Israel, it has not recognized Jerusalem as within the sovereignty of either Israel or any other nation; and that compelling the State Department to issue passports that implicitly viewed Jerusalem as part of Israel would be inconsistent with the limits of the executive’s recognition decision.

This is a decision with potentially significant implications in the Middle East, and perhaps even greater implications for longstanding, unsettled questions concerning the dimensions of the power of the President and of Congress, particularly in the field of foreign affairs. In U.S. constitutional terms, one of the most encouraging features of the case is that, as Professor Marty Lederman has noted, although a majority of the Court endorsed the President’s exclusive and overriding authority in this instance, 8 of the 9 justices steered clear of sweeping affirmations of Presidential primacy of the sort that have sometimes been uttered and that rose to prominence during the Bush presidency. (Obama too exercises a lot of executive authority – too much, some observers say – but the rhetoric of power, at least, has been more restrained under him.)

The complicated constitutional issues of the case are already getting a lot of attention. I want to look at the case in cruder, but still illuminating, ways. Here’s one: the role of religion or ethnicity. The justices in the majority, who rejected Zivotofsky’s effort to get “Israel” listed as his birthplace in his U.S. passport (Zivotofsky, by the way, is still a child; his case was brought “by his parents and guardians,” Mr. and Mrs. Zivotofsky), included both of the Jews who sit on the Supreme Court. To whatever extent a “pro-Israel” position would have urged the opposite result, these two justices, Breyer and Ginsburg, declined to vote on religious/ethnic grounds – and that’s exactly what we should hope for from judges committed to the rule of law.

But here’s another: the role of politics. Breyer, Ginsburg, Kagan and Sotomayor are the four liberal members of the Supreme Court, and all of them voted with the majority, giving a victory to President Obama. Roberts, Scalia and Alito are all among the conservative members of the Court, and all of them dissented. Only Justice Kennedy, in many ways a conservative justice but also recurrently a swing voter, and Justice Thomas, certainly conservative but listening to his own jurisprudential drummer, voted in a way that seems contrary to their probable political inclinations.

In saying this I don’t mean that the justices sacrificed their principles for politics – something that, if it happened, would be a corrosion, or perhaps a breakdown, of the rule of law. That could happen, but the seeming fit of some justices’ votes and politics by itself is far short of showing it. Rather it suggests something natural and even good: that the justices reflected on their principles in light of the circumstances they addressed. In doing that, they did no more than what the justices in the famous Steel Seizure case (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)) may have done. There a majority of the Court rejected President Truman’s claim of authority to seize the nation’s steel industry so as to head off a strike that might have imperiled the Korean war effort, and set a crucial precedent on the dimensions of presidential and congressional power. I've seen it suggested that the Steel Seizure justices may well have reacted to the President’s claims of power in the context of disquiet about the war that then was being waged -- and context does, indeed, matter.

And here’s one more: the role of rhetoric. Justice Scalia dissents, and so he finds himself in disagreement not only with the majority but with Justice Thomas, who concurred in the majority’s result as to the passports but on his own, startling rationale. Here’s what Scalia says about Thomas’ rationale:

            Whereas the Court’s analysis threatens congressional power over foreign affairs with gradual erosion, the concurrence’s [Thomas’s] approach shatters it in one stroke. The combination of (a) the concurrence’s assertion of broad, unenumerated “residual powers” in the President …; (b) its parsimonious interpretation of Congress’s enumerated powers …; and (c) its even more parsimonious interpretation of Congress’s authority to enact laws “necessary and proper for carrying into Execution” the President’s executive powers …; produces (d) a presidency more reminiscent of George III than George Washington. (Scalia, J., dissenting, at page 19.)

This is strong stuff. An old country song lyric talks about how ways people can part: “when you leave that way, you can never go back." Do these words mark a lasting divide between two of the most conservative members of the Supreme Court? And could that divide have some impact on the Court’s future judgments? The rule of law, whatever exactly it consists of, is a regime fashioned by people, and this personal divide may affect the shape of US law.