Saturday, February 24 , 2018, 5:49 pm | Fair 58º

 
 
 
 

Susan Estrich: What Courts Do Best Is Fix Bad Laws

Sometimes what courts do best is the same as what second-grade teachers do best: clean up sloppy sentences. You know what the student meant to say, but what they actually did say doesn’t quite make sense.

Six words: If you can’t afford health coverage, subsidies are available through “an exchange established by the state.”

But what if the state didn’t set up an exchange and instead is relying on the exchange set up by the federal government?

Do you then NOT get a subsidy?

The U.S. Supreme Court’s majority opinion in King v. Burwell last week referenced “more than a few examples of inartful drafting,” but concluded that “the context and structure of the act (Patient Protection and Affordable Care Act) compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”

In other words, Congress meant for the act to work, not to fail, and so the court, recognizing the frenzied state of drafting and redrafting midelection, decided to read the bill so that it would work. It decided to read the bill so that poor people would get subsidies regardless of whether their state created an exchange.

Congress was trying to help people who needed help, and the Supreme Court, as it has done in the past (maternity leave being an example of a gendered law that was upheld), has cleaned up the inartful language that would bar precisely what Congress was trying to provide.

So what’s everyone yelling about?

Simple. This was never about principle. This wasn’t a dispute about the separation of powers or abuse of executive power or anything like that. This has been a fight about politics, fair and square. Plenty of elections turning on it. But all politics.

So the people from the states that “weren’t entitled” to subsidies actually wanted the subsidies — they were just against the law. You won’t see many people sending those subsidy checks back in the mail, or insisting that their 20-something kids not be covered, or — imagine — excluding people from buying insurance precisely because they are sick. What could be more ridiculous?

I hope someone has tallied up the amount of time the Republicans have wasted filibustering and coming up with votes sure to fail in an effort to thwart their political defeats. And then what do they do? They go running to the courts to demand that the judiciary, known as unduly active when they’re against you, become the staunch defenders of constitutional government when you’re out to crush Congress.

In his dissent, Justice Antonin Scalia said: “We should start calling this law SCOTUScare.”

By Scalia’s lights, the court has saved the law twice now from its sloppy drafting — or unconstitutional abuse of power, which is how he would have it.

But there is another way to see it, which is simply this: The court did its job. It cleaned up some drafting and interpreted the law as a good-faith effort to accomplish what its drafters set out to do, which is expand affordable access to quality health care.

No small job and not done perfectly, certainly not this time. But if we would spend half as much time figuring out how to fix the law, which is here to stay, as we have playing games that would neither destroy nor fix it, Americans might be better off in more ways than one.

Susan Estrich is a best-selling author, the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her or click here to read previous columns. The opinions expressed are her own.

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