June 25, 2015

BYPASSING SEPARATION OF POWERS TO “FIX” SLOPPY LAWS:  My SCOTUSblog take (with co-author David Rivkin) on the Supreme Court’s King v. Burwell decision.

In King v. Burwell, the Supreme Court surprised many Court watchers, ruling six to three that the Affordable Care Act (ACA) permits individuals who buy health insurance on the federal exchange to receive taxpayer subsidies. The decision represents a decisive victory for ACA supporters, and an equally decisive loss for the rule of law.  With King, the Supreme Court has signaled (again) that it is willing to “save” important laws by rewriting them, thus behaving as an all-powerful, unelected, politically insulated, unconstitutional Council of Revision. . . .

[B]y departing from the “natural reading” of a law that is patently poorly drafted, the Court has short-circuited the entire political process.  When judges take it upon themselves to “fix” broken legislation like the ACA, they diminish political accountability by encouraging Congress to be sloppy when drafting legislation. And when it comes to the quality of legislating, judicially drafted “legislation” is always worse than even hastily drafted congressional statutes.

Moreover, when faced with a poorly drafted law, the executive branch has every incentive to amend laws unilaterally, rather than working with Congress to amend them.  It may be expedient for presidents to issue regulations pretending legislation says whatever the president wants it to say, but such de facto executive-lawmaking inherently lacks the deliberation and compromise that permeates the legislative process.

The Court’s decision in King is a disaster for the rule of law, particularly the separation of powers. One can only hope its sloppy reasoning is a “one off,” designed specifically to save (again) the ACA, that won’t be extended to other situations. Otherwise, the current Roberts Court is signaling that it thinks it has free constitutional reign to use inchoate “contextual” reasoning to bypass plain statutory text.

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