When Congress Makes a Joke, It’s A Law

So when all the yielding and objections is over, the other Senator said, “I object to the remarks of a professional joker being put into the Congressional Record.” Taking a dig at me, see? They didn’t want any outside fellow contributing. Well, he had me wrong. Compared to them I’m an amateur, and the thing about my jokes is that they don’t hurt anybody. You can say they’re not funny or they’re terrible or they’re good or whatever it is, but they don’t do no harm. But with Congress — every time they make a joke it’s a law. And every time they make a law it’s a joke.

Will Rogers

After 32 years at the bar I have reached some conclusions about legislation and the law.  First, legislation tends to be a sloppy process.  In the hurly-burly of the legislative process, and the hacking and re-writing of proposed legislation, not infrequently the finished product contains parts that do not mesh well with pre-existing laws, portions that make no sense at all or sections that simply are logically inconsistent with other sections.  As these laws go into force, most of the time they eventually are challenged by attorneys in law suits and the attorneys wrapped in black, i.e. judges, have to figure out what to do next.  Second, a big problem that exists in this area is the doctrine of separation of powers.  The courts are not supposed to rewrite legislation passed by a legislature.  A whole body of law exists to aid a judge in this thicket called statutory construction.  In a few states there are actual statutes governing how a court is to interpret a statute, and some laws actually have sections telling a court, for example, that if it finds that one section of a statute is unconstitutional, then the remainder of the statute will still be in full force and effect.  However, most of the time, in both the states and federal judicial systems, the courts rely on prior cases ruling on how courts are to interpret statutes.

One of these rules of construction is that courts will usually not rewrite a statute which is clear in order to produce a new statute that matches legislative intent rather than what is actually written in a statute.  Here is a hypothetical example:  A state passes legislation that states that all lawyers will appear in court dressed in clown garb.  Now in every section of the statute the term “clown garb” is used, except in one section where the term used is “garb”.  A court might view this as a simple mistake and say that reading the statute all together, it is clear that attorneys are required to wear clown garb.  However, let us say that a preamble to the legislation states that this is being done in order to underline the fact that most attorneys are bozos and therefore should be dressed as Bozo the Clown when they appear in court, but in the body of the statute only the term “clown garb” is used.  In that case a court would likely rule that although the legislative intent is clear the court cannot rewrite the legislation and attorneys, as long as they are dressed like any sort of clown and not just as Bozo, may appear in court.

Well, something similar just occurred in regard to that Frankenstein of the legislative process, the Affordable Care Act, i.e. ObamaCare.

When ObamaCare was passed it had 381,517 words in it.  It was a poorly crafted piece of legislation with many parts that mesh poorly with other parts, and with existing statutes, and many parts that do not make sense.  However, where it has come a cropper is in a section that is clearly written.  In Halbig v. Burwell the question was litigated about whether taxpayer subsidies for health insurance were available in the 36 states where the Federal government set up the healthcare exchanges and not the individual State governments.  A three judge panel of the Federal DC Circuit Court of Appeals voted three to one that such subsidies were not available because the act as passed by Congress restricted those subsidies to health care insurance purchased through health care exchanges established by the States:

On the merits, this case requires us to determine whether the ACA permits the IRS to provide tax credits for insurance purchased through federal Exchanges. To make this determination, we begin by asking “whether Congress has directly spoken to the precise question at issue,” for if it has, we must give effect to its unambiguously expressed intent. Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842-43 (1984). The text of section 36B is only the starting point of this analysis. That provision is but one piece of a vast, complex statutory scheme, and we must consider it both on its own and in relation to the ACA’s interconnected provisions and overall structure so as to interpret the Act, if possible, “as a symmetrical and coherent scheme.” See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (internal quotation marks omitted); Wolf Run Mining Co. v. Fed. Mine Safety & Health Review Comm’n, 659 F.3d 1197, 1200 (D.C. Cir. 2011).

Although both appellants and the government argue that the ACA, read in its totality, evinces clear congressional intent, they dispute what that intent actually is. Appellants argue that if taxpayers can receive credits only for plans enrolled in “through an Exchange established by the State under section 1311 of the [ACA],” then the IRS clearly cannot give credits to taxpayers who purchased insurance on an Exchange established by the federal government. After all, the federal government is not a “State,” see 42 U.S.C. § 18024(d) (defining “State” to “mean[] each of the 50 States and the District of Columbia”), and its authority to establish Exchanges appears in section 1321 rather than section 1311, see id. § 18041(c)(1). The government counters that appellants take a blinkered view of the ACA and that sections 1311 and 1321 of the Act establish complete equivalence between state and federal Exchanges, such that when the federal government establishes an Exchange, it does so standing in the state’s shoes. Furthermore, the government argues, whereas appellants’ construction of section 36B renders other provisions of the ACA absurd, its own view brings coherence to the statute and better promotes the purpose of the Act.

We conclude that appellants have the better of the argument: a federal Exchange is not an “Exchange established by the State,” and section 36B does not authorize the IRS to provide tax credits for insurance purchased on federal Exchanges. We reach this conclusion by the following path: First, we examine section 36B in light of sections 1311 and 1321, which authorize the establishment of state and federal Exchanges, respectively, and conclude that section 36B plainly distinguishes Exchanges established by states from those established by the federal government. We then consider the government’s arguments that this construction generates absurd results but find that it does not render other provisions of the ACA unworkable, let alone so unreasonable as to justify disregarding section 36B’s plain meaning. Finally, turning to the ACA’s purpose and legislative history, we find that the government again comes up short in its efforts to overcome the statutory text. Its appeals to the ACA’s broad aims do not demonstrate that Congress manifestly meant something other than what section 36B says.

Go here to read the text of the decision.  The Federal government is now petitioning for a rehearing by the entire DC Circuit of the Court of Appeals.  The Fourth District in the case of King v. Burwell has reached an opposite conclusion.  Go here to read that decision.  This issue will doubtless end up before the Supreme Court.  Legislate in haste, repent at leisure.

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  1. The wise legislator will always bear in mind the words of the great Jean-Étienne-Marie Portalis, one of the men who composed the Code Napoléon and often referred to as the philosopher of the commission: “”A host of things are necessarily left to usage, to the discussion of men learned in the law, to the decision of judges….The function of statutory law is to fix, in broad lines, the general maxims of the law, to establish principles that will be fecund in consequences, and not to descend to the details of questions that may arise in each subject. It is for the judge and the jurist, imbued with the general spirit of the laws, to direct their applications.”

    Portalis, a Catholic, who had suffered for his faith under the Revolution, made another mordant observation: “We have too much indulged, in recent times, in changes and reforms; if in matters of institutions and laws the periods of ignorance witness abuses, the periods of philosophy and enlightenment too often witness excesses.”

  2. When ObamaCare was passed it had 381,517 words in it.

    That would be over 600 single-spaced typed pages, letter-head dimensions, pica type. I think the original Social Security Act was about 35 pages long. The banking legislation passed in 1933 did not make it into a 3 digit page count. I am not sure the act authorizing Medicare and Medicaid in 1965 did either.

    This was adjacent in time to the Dodd-Frank financial ‘reform’, another door stop. They’re not getting better at this sort of thing. I think its a mix of incompetence and what is done to please the Democratic Party’s many rent-seeking camp followers.

  3. The history of the 20th ecntury is replete with tragic examples of how state power, central planning, command economies lead to economic ruin.

    Mark Twain on Congressmen:

    “Fleas can be taught nearly anything that a Congressman can.”
    – What Is Man?

    “…the smallest minds and the selfishest souls and the cowardliest hearts that God makes.”
    – Letter fragment, 1891

    “Suppose you were an idiot. And suppose you were a member of Congress. But I repeat myself.”
    – Mark Twain, a Biography

    “Congressman is the trivialist distinction for a full grown man.”
    – Notebook #14, 11/1877 – 7/1878

    “All Congresses and Parliaments have a kindly feeling for idiots, and a compassion for them, on account of personal experience and heredity.”
    – Mark Twain’s Autobiography; also in Mark Twain in Eruption

    “It could probably be shown by facts and figures that there is no distinctly native American criminal class except Congress.”
    – Pudd’nhead Wilson’s New Calendar

    “…I never can think of Judas Iscariot without losing my temper. To my mind Judas Iscariot was nothing but a low, mean, premature, Congressman.”
    – “Foster’s Case”, New York Tribune, 3/10/1873

  4. And then there is the due process angle. People have a right to rely on the words of written law. If Congress passes a law that says X, it is critical that people can rely on X even if Courts or various elite specialists are confident that Congress must have instead meant Y. As Don points out, this due process concern does not apply when a law says something that can fairly be interpreted as either X or Y, but that simply was not the situation presented to the DC Circuit.

  5. Trivia note: Foghorn Leghorn from the Looney Tunes cartoons was originally created as a spoof of Senator Beauregard Claghorn.

  6. The Affordable Care Act lacks a severability clause…possibly the result of rushing through legislation.
    That omission may constitute the loose thread that unravels it all.

  7. That omission may constitute the loose thread that unravels it all.

    The schaldenfreude is limited by the anxiety that the President and Congress have managed to take down the market for household medical insurance and bollix the employer-paid market as well.

    Otherwise, I’d chuckle. He went after a policy monument to himself (but did none of the detail work) in lieu of addressing the structural defects of the financial sector (in regard to which we got a piece of spaghetti logic written in the course of bull sessions by lobbyists parked in Barney Frank’s office). The whole two-step was so vain and irresponsible he deserves to have it blow up in his face. Now if the public could just breeze through like the Road Runner while Pres. Sooper Genius gets taken out….

  8. Ad writes, “…The schaldenfreude is limited by the anxiety that the President and Congress have managed to take down the market for household medical insurance and bollix the employer-paid market as well…”
    Rahm Emanuel might characterize your concerns as an opportunity…
    or in his own words…””You never let a serious crisis go to waste. And what I mean by that it’s an opportunity to do things you think you could not do before.”

  9. Laws can often have applications undreamt of by those who enacted them.
    A famous instance of this is Art 1384 of the Code Napoléon that makes one responsible for damage caused by “those things one has in one’s custody.” [des chose qu’il on a sous sa garde]
    The only application that occurred to the early commentators was to injuries caused by animals and falling flower-pots. However, when, about a hundred years ago, the courts first started dealing with motor accidents, they used Art 1384 to impose strict liability on drivers, thereby eliminating the question of fault. If two cars collide, each pays for the damage caused to the other. Compulsory insurance policies are written on that basis and the result is a great saving of judicial time and legal expenses.
    Similarly, the courts found Art 1184 (« Il n’y a que les choses qui sont dans le commerce qui puissent être l’objet des conventions. » – “Only things in trade can be the subject of an agreement”] ready to hand to enable them to invalidate the sale of human gametes and agreements for surrogate gestation.

  10. Who could resist this little ditty – It’s worthy of Gilbert and Sullivan

    I’m the parliamentary draftsman
    I compose the country’s laws,
    And of half the litigation
    I’m undoubtedly the cause.
    I employ a kind of English
    Which is hard to understand.
    Though the purists do not like it,
    All the lawyers think it’s grand

    I’m the parliamentary draftsman,
    And my sentences are long.
    They are full of inconsistencies
    Grammatically wrong.
    I put parliamentary wishes
    Into language of my own,
    And though no one understands them
    They’re expected to be known.

    I compose in a tradition
    Which was founded in the past,
    And I’m frankly rather puzzled
    As to how it came to last.
    But the civil service use it,
    And they like it at the Bar,
    For it helps to show the laity
    What clever chaps they are.

    I’m the parliamentary draftsman
    And my meanings are not clear,
    And though words are merely language
    I have made them my career.
    I admit my kind of English
    Is inclined to be involved.
    But I think it’s even more so
    When judicially solved.

    I’m the parliamentary draftsman,
    And they tell me it’s a fact
    That I often make a muddle
    Of a simple little Act.
    I’m a target for the critics,
    And they take me in their stride.
    Oh, how nice to be a critic
    Of a job you’ve never tried.
    J.P.C., “The Parliamentary Draftsman”, Poetic Justice (London: Stevens & Sons Ltd., 1947),

  11. I’m sure John Roberts will save the ACA and let us know what the law meant and not what it says.

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