Philadelphia Reflections

Amending Laws Rather than Rejecting Them

Division of power is one of the strengths of our system of governance. Isolating power to authorize spending, from power to spend, serves as an example. It's rather different, if one side seems to be winning all the battles; some fundamental power should possibly then be shifted. If the Founders believed God wound up the Universe clock and then let it run by itself, it seemed sensible to organize all government operations the same way. Entropy does not pick political favorites.

Very likely, the founders underestimated the time it would take for final balance to be struck between these two viewpoints, because it is nearly always the majority opinion which needs to be resisted. That's the unwritten assumption about what today is called Quaker Process, which occasionally irritates jumpy people. But nevertheless, in two hundred years, only slavery has seemed intractably unbalanced enough to warrant re-balancing by force. The Supreme Court-packing episode of 1937 came pretty close, ultimately shifting commerce regulation from states to federal. But it should have been done by amendment. Deleting the word "interstate" from the "interstate commerce" clause, must have seemed clever. That innovative way of amending the Constitution by one-word amendment has now lasted nearly a century, has never been exactly repeated, and surely would be reversed if the states could discover a way to regain their intended former power. Parsimony of words is admirable, but to have Courts amending the substance of a law is not in the province of either the Judicial or Executive branch. It takes some process the minority will agree to.

The Roberts Court seems to be continuing the "interstate" example of reversing policy by shifting the meaning of substantive words, as in "tax" and "penalty", when almost everyone agrees more orthodox amendment is more civil. Revising the meaning of "State exchanges" to include "Federal exchanges", clearly exceeds public tolerance for unorthodox approaches to language, however. If that's where they are going, the Court better slow down before their example is taken by lower courts, and ultimately by common practice. If you want to be treated like a leader, you must act like one. Our doctors in 1965, if not our lawmakers, had noticed Canada offering block grants to provinces who adopted the National Health system, which even Quebec felt forced to accept if they were going to be taxed for it, anyway. It seems particularly extortionate when applied to the Affordable Care Act. Our Supreme Court was primarily declaring, hinted extortion of this sort was unacceptable because of repeated Executive Branch examples of it.

The Interstate Commerce Clause became the Commerce Clause, and Penalties became Taxes.

The Living Constitution

That a majority of the Court was willing to reverse the meaning of language even after previously striking federal coercion in the same law, probably reflects the underlying opinion of one wavering Justice rather than the whole Court, while the Chief Justice struggled to maintain authorship of the decision. In the long view, elections rather than a few altered words may clarify the legal point. But an opportunity has been created for opportunists to move faster than the whole Court usually would.

In the case of King v. Burwell much the same thing as in the Court-packing episode happened, but in a law rather than the Constitution. Just as the word "Interstate" was deleted to read "Commerce Clause", while in the other, "State and Federal Exchanges" became "exchanges". The original language of the Act, about who can extend subsidies, was reversed to mean its opposite. This additionally has the subtle effect of endorsing the Legislative practice, demonstrated in this legislation, of placing deliberately opposite views into House and Senate versions, in order to conceal the real intention until the conference committee meets, the press is absent, and a holiday is near. In this case, it has the alternative appearance to the public that some members of the Court may have been better informed about the facts behind drafting the bill, than others.

A cloud of conflicting stories were printed after the decision, and it is hard to judge which one was truthful. My own preference is for the book by Jacob S. Hacker, The Road to Nowhere , written from interviews years earlier about the maneuvers of Hillary Clinton's allies for the Clinton Health Plan. Hacker now sounds particularly pertinent, since he was active in the Obama campaign, and because the reasoning of the majority about "ambiguity" sounds so strained. The suspicion of cover stories is regrettable. The public likes to believe the cloistered Supreme Court does not read the newspapers, as Mr. Dooley once put it, and only acts on testimony under oath in front of opposing counsel. That may be physically impossible, but the appearance is worth preserving.

Originally published: Sunday, April 12, 2015; most-recently modified: Monday, May 13, 2019