Constitution Check: Does the new Obamacare challenge have anything to do with the Constitution?


Lyle Denniston, the National Constitution Center’s adviser on constitutional literacy, looks at how the upcoming Obamacare case in the Supreme Court is a classic one of  interpreting statutes.




Article III of the Constitution gives the federal courts – and, especially, the Supreme Court — broad power to decide “cases or controversies.”   And that includes interpretations of what the words written into a law actually mean, because lawmakers don’t always spell out definitions or explanations of what the laws they write are supposed to do.   The courts fill in the gaps by deciding lawsuits between dueling parties; both sides in such legal disputes often have their own view of what a law’s words mean.

The Constitution, however, provides no guidance to the federal courts on the right way, or wrong way, to read a statute. But there is a constitutional principle that is very much at work when a court sets out to interpret a law; it is the structural concept of separation of powers.

The Founders created a national government with three distinct branches, and, while they provided for some shared duties or powers, the branches were meant to stay mainly within their own sphere of authority: Congress writes the laws, the Executive carries them out, and the Judiciary decides controversies that arise under those laws between real people or institutions with something genuine in dispute.

With great regularity, the Supreme Court reminds everyone that it is not the business of the courts to rewrite a law to suit some purpose or desire beyond what the lawmakers themselves had intended. But that hesitancy goes only so far: how does one know what Congress’s purpose or intent was? And how is a court to remain faithful to that purpose or intent in applying a law to the combatants in a lawsuit?

In a simplistic way, there are three basic approaches to interpreting a law’s meaning.

One is to locate the actual words – the text or language — that seem to apply to the issues in a lawsuit, and give them their ordinary and customary meaning. That is usually done in isolation, apart from any other influences that might have been at work in the legislature.

Another is to examine the words in the context of what other materials were generated during the lawmaking process: committee reports and floor debates, for example. This is supposed to aid in finding out how text fits into larger purpose or goal. .

The third is something of a variation of the second: try to figure out the larger policy goal of the law, taken as a whole, and then measure the text against that. Legislators, under this approach, are understood to be in the business of advancing policy, not just writing a legal code.

Each approach, in its own way, is supposed to limit the discretion of a judge in analyzing the meaning of a statute. Courts are very conscious of the separation-of-powers mandate, and very aware of the criticism they get for supposedly “legislating from the bench.”

Devotees of the first approach – the textualist – tend often to believe that judges who use the other two approaches give themselves too much leeway to implement their own policy preferences. Devotees of the other two approaches tend often to believe that textualists are making their focus too narrow, treating lawmaking as if it were a mechanical rather than a creative process.

The Supreme Court, by agreeing last week to review the new challenge to the Affordable Care Act in the case of King v. Burwell, is going to be acting out one or more of the basic approaches. There are Justices who will look at the key words at issue, and accept that they have a definite meaning. And there are Justices who will be looking to Congress’s larger purposes in creating a vast and complex new health care system.

The key words are these: “exchange established by the state.” That is a reference to the new health insurance marketplaces, or exchanges, where individuals can go to shop for coverage.   Congress set up those marketplaces in a way that was designed to try to get more coverage for more people at affordable premium rates – thus the popular name of the law, the Affordable Care Act.   In order for people of modest income to be able to afford insurance bought on a marketplace, Congress created a system of subsidies, in the form of tax credits.

The textualists who brought the lawsuit that has now reached the Supreme Court have argued that the law’s language is very clear, so that the subsidies are to be available only to individuals who obtained their insurance on an exchange actually set up by a state government – as in 16 states. But defenders of the ACA’s broad policy goal have countered that Congress was not creating a regional system of health care marketplaces, but a national one, so the subsidies should be available all across the country – including at the 34 marketplaces established by the federal government in states that had refused to set up their own.

The case is thus a classic one of warring styles of interpreting statutes, and the style used may well determine the final outcome.   When that decision does emerge, it almost certainly will have telltale signs of how the constitutional principle of separation of powers did work out in the context of a highly controversial case focusing on a federal law of nationwide importance.