Kling on the Constitution and the Common Law
According to a legal theory I am about to sketch, the Supreme Court would let stand the subsidies that are being paid to people through the Federal health care exchange, in spite of the language in the law that says only state exchanges are entitled to pass on subsidies. Instead, the Supreme Court would say that from a common-law perspective, the subsidies on the Federal exchange are what people have come to expect.
So writes Arnold Kling, former blogger at Econlog, in “The Supreme Court and the Text of the Law.”
My question is “which people?”
The Obama administration decided that, despite the law’s language, the subsidies apply even in states whose governments have not set up their own exchanges. So it’s clear what the Obama administration’s expectations were. But that’s a small number of people. Well then, maybe we could look at what one of the architects of the law, Jonathan Gruber, thought it meant. Gruber thought (see here, starting at the 31:50 point) that the subsidies would not apply in states that didn’t set up the exchanges. Maybe we could look at what Oklahoma’s attorney general Scott Pruitt thought it meant. He agreed with Gruber.
The problem with the “what people have come to expect” is that it gives weight to some people’s expectations over those of other people. How does one find a way out? That’s hard when all we have is expectations. It’s easy, though, when we actually have a fairly clearly written law. The way out is to insist that the law be interpreted as written.