Try a Different Analogy

  In Paul Krugman’s Monday column in the New York Times, he draws an analogy between the issue in King v. Burwell (whether the tax subsidies for Obamacare are available only on state exchanges) and his parents’ experience with their deed to their home. According to Krugman, “[m]y parents used to own a small house with a large backyard” but “[a]ccording to the text [of the deed], the Krugman lot wasn’t a rough rectangle; it was a triangle more than a hundred feet long but only around a yard wide at the base. ... [I]t was clear what had happened: Whoever wrote down the lot’s description had somehow skipped a clause. And of course the town clerk fixed the language.”
  Indeed! The town clerk had no authority to do so.  The Krugmans’ remedy was to quiet title to the property they actually occupied by asserting the doctrine of adverse possession.  To do so would have required a suit, joining all adverse claimants to the property and establishing all the requisite elements of adverse possession for the requisite statutory period. Perhaps Krugman made up the story, or perhaps the clerk exceeded his lawful authority, which would have just left the issue smoldering.  But in any case it is an inapt analogy to the issue presented in King v. Burwell. There are lots of arguments to be made in King: 1) Should the plain meaning canon apply to the phrase in isolation, or to the phrase in the context of the entire law? 2) If plain meaning dictates the result the plaintiff’s desire, should plain meaning be ignored because it would produce absurd results?  And what constitutes an absurd result? Is it absurd to construe the clause in isolation as limiting subsidies to state exchanges or can the absurdity be manifested by the impact it has on other, separate sections of the law? 3) Is the phrase sufficiently ambiguous that courts should defer to the IRS interpretation? But Krugman’s implausible analogy is no help.

Comments

[confused by your post]

I am no expert on the specific provisions of the ACA or on rules for interpreting disputed statutory language. That said I would ask those on FL whether the ACA as a whole may actually be read in a manner which is consistent with the "plain meaning" of the phrase at the heart of the matter?

I have read commentary that the ACA can be read to only subsidize people who get their insurance through state exchanges. This provides an incentive for the states to set up their own exchanges. No idea is this is really the case.

If there is a way to read the statute in a way that makes it work, then the Court may avoid having to look into "intent" and all that entails.