WASHINGTON, June 25, 2015 — The Supreme Court’s opinion in King v. Burwell may set a dangerous precedent.
When problems occur with contracts or laws, the solution is usually found by discovering how similar situations have been handled in the past. Legal solutions are found through precedent and analogy.
When a dispute arises, the court first looks at the exact language or plain wording of the document. If the language is clear, the conflict can be resolved by simply having each party do exactly what the law or contract requires.
If the language is not clear, then the court goes beyond the words to determine the intent of the parties. In the case of Obamacare, the law clearly says that subsidies are paid to enrollees of “an exchange established by the state.”
That plain language seems very clear to the dissenting justices. This system of relying on clear language avoids the requirement of reading the minds of legislators and those who enter a contract, and it helps to ensure that the law is consistent.
Justice Roberts and five other justices disagreed. They went beyond the clear language and said it was the intent of Congress to pay subsidies to all eligible Americans, including those who enrolled on a federal exchange. They ignored the plain language of the law and made their decision based on intent.
This is a dangerous precedent. If the clear language of the law can be ignored in the name of intent, then the language of the law becomes irrelevant to a court determined to enact its own agenda.
In 2012, the individual mandate in Obamacare was also challenged before the court. The plaintiffs argued that the federal government has no authority to force every American to purchase a product. They said that Obamacare forces every American to purchase insurance, so it is therefore illegal.
The Supreme Court, in a 5 to 4 vote, allowed the individual mandate to stand. Although the decision seemed inconsistent to me, it did make sense.
Roberts said that Americans could not be forced to purchase insurance by virtue of the commerce clause. They could, however, be forced by Congress to pay a tax. The fine for not buying insurance is a tax, opined the majority, and the federal government has the authority to tax.
That seemed consistent, since the federal government already forces every working American to purchase Social Security Insurance. The fee is the social security tax that we pay. Obamacare is similar.
But today’s decision, which skips reaching a conclusion based on plain language and instead is based on intent, is disturbing. Since it is known that not one senator or representative read the law before they voted, it is impossible to determine the intent of Congress. Therefore it would have been consistent to rule on the plain language, which the court clearly did not do.
Most disturbing is that this decision sets a precedent. That is, even when the language in a contract or a law is written clearly and in plain language, a party may be free to take actions inconsistent with the wording and later claim that the actions are consistent with the intent of the document. Does this now mean that clear, plain language may not be as clear and plain as the parties believe?
Can parties to a clearly written contract alter the terms and justify it by intent? Can future presidents, who have sworn to uphold the law, take actions outside of that law and, if challenged, claim that the action is legal because of the intent of Congress?
Most of us have transacted some business where contracts were present. When the lawyers write the contracts, they attempt to use plain language to avoid any ambiguity and possible disputes. When a dispute arises, we go back to the contract, read the plain language, and the dispute is settled.
I can now hear an adversary argue, “Well I know what it says, but this is what it meant.” Is that the way our leaders will govern in the future?