I’m no expert either on ACA or on the dark art of statutory interpretation, but unless someone tells me otherwise I’m going to regard Dylan Scott’s story as nailing down the factual question about what Congress thought it was doing when it passed the ACA. As Abbe Gluck at Balkinization points out, the two very ideological judges on the DC Circus who voted to wipe out a major piece of legislation based on a drafting error had to find, not only that their twisted interpretation of the statute was plausible, but that the alternative interpretation – the one that made the statute workable rather than completely unworkable – was utterly implausible.

It’s possible that a hyper-partisan Supreme Court majority will choose to pretend to believe this fiction, just as a similar majority pretended to believe that George W. Bush would suffer “irreparable damage” from an honest vote count in Florida. But it is not possible that, in doing so, any of the (in)Justices would be acting in good faith. It would be just one more instance of Weimar Republicanism.

So far, Memorandum isn’t aware of any Red-team blogger or journalist who has responded to, or acknowledged, Scott’s story. I’ll be watching.

Footnote Did anyone point this out in the briefs or oral argument. If not, why not?

Second footnote

The in-your-face, f***-you cynicism of concluding paragraph of the majority opinion is, if possible, even more outrageous than the decision.

We reach this conclusion, frankly, with reluctance. At
least until states that wish to can set up Exchanges, our ruling
will likely have significant consequences both for the millions
of individuals receiving tax credits through federal Exchanges
and for health insurance markets more broadly. But, high as
those stakes are, the principle of legislative supremacy that
guides us is higher still. Within constitutional limits, Congress
is supreme in matters of policy, and the consequence of that
supremacy is that our duty when interpreting a statute is to
ascertain the meaning of the words of the statute duly enacted
through the formal legislative process. This limited role
serves democratic interests by ensuring that policy is made by
elected, politically accountable representatives, not by
appointed, life-tenured judges.

Does anyone really believe that the two Republicans who signed this pap acted with “reluctance”? Or that they didn’t intend to substitute their appointed, life-tenured political preferences for those of the elected, politically accountable representatives who passed the bill?


[Cross-posted at The Reality-Based Community]

Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.