ORIGINAL INTENT

Posted in Rants on November 13th, 2014 by Ed

The upcoming Supreme Court decision on the healthcare reform law might be the most important since Citizens United, not only because striking down the law would impact the ability of many Americans to afford health insurance. It is more important as a barometer of just how far down the rabbit hole of partisan hackery the right-wing majority on the Court has traveled.

The latest "legal" challenge essentially based on a typo and a ridiculously overly-literal reading of one sentence in the bill that, if the logic of this argument is followed, implies that only insurance exchanges run by individual states and not by the Federal government can subsidize insurance. This is the kind of argument you make when you have lost an argument. You start measuring the margins and checking the font size to see if some irrelevant minutiae of the code of bureaucratic requirements has been violated. You pull out the dictionary and parse every word according to the most obtuse reading of its literal meaning. You take individual phrases out of context and read them in a vacuum while entirely disregarding the meaning of the text in its entirety.

At least four people on the Supreme Court think this case is worth hearing, which is alarming given how sophomoric and pedantic this argument is. These are people who argue that aside from the text itself the most important consideration in interpreting the Constitution is the intent of its authors – and here they are poised to completely disregard the intent of the people who wrote and voted on a piece of legislation. Irony doesn't get more ironical than that.

If the law is struck down on this basis – and it might be – the five ancient right-wing hacks on the Court have initiated an entirely new era of jurisprudence wherein every law, rule, and regulation will be subject to legal challenges based on a pedant's most intentionally obtuse reading of the text. Where would be the limit? This is not an invocation of a Slippery Slope; it is a legitimate question. Could a law be invalidated for being printed on the wrong kind of paper? Could it be invalidated if something is misspelled? If a punctuation mark is used incorrectly? If a member of the leadership in the House or Senate misspeaks or pronounces a word incorrectly during the procedural stage of voting on the bill? If I get an audio recording of a voice vote and argue that some members were saying "eye" instead of "aye"?

Answering questions of this variety seems like an excellent use of the time of our nation's jurists. This type of argument used to get laughed out of court; hell, it used to get laughed out of a second-year law school seminar room. And now because OBAMA it is being entertained seriously by the most powerful court in the land. Cool.