June 25, 2015

The ObamaCare Ruling As Legal Gnosticism

In the early Christian church, there arose the Gnostic heresy. It diverged wildly from the orthodox teachings of the Christian community in a number of ways, among them in the belief that Biblical texts have a deep, hidden meaning which could only be understood by those initiated into the "secret wisdom" to which the Gnostics claimed access. Thus the average believer might understand a scriptural text to have a clear meaning based upon the written word, but those who were initiates would understand the actual meaning which lurked beneath the text because they were "in the know".

Frankly, I have not thought much about the Gnostics in the two decades since I left the seminary -- but that changed this morning after the announcement of the Supreme Court decision in King v. Burwell. Why? Because the majority opinion goes to great lengths to show that the actual text of the statute establishing ObamaCare means something other than what the words clearly state -- just trust the enlightened initiates whose special knowledge enables them to see a meaning quite different than what those words actually say!

Today’s decision in King v. Burwell is notable in many respects. It is a significant legal victory for the Obama Administration, a victory for purposivist statutory interpretation, a loss for textualism, and a loss for an expansive Chevron doctrine. In these latter respects, the decision is something of a double-loss for Justice Scalia (which may explain the last line of his opinion). King also means that, in many respects, the PPACA is now the law that Chief Justice Roberts wrote as here, as in NFIB v. Sebelius, the Chief Justice has decided it is the Court’s job to determine what the statute means — even if this requires ignoring or rewriting text — if such is necessary in order to save it. The umpire has decided it’s okay to pinch hit to ensure the right team wins.

The primary basis for the Chief Justice’s decision is that a “fair construction” of the statute requires more than giving meaning to discrete phrases, so “established by the State” need not mean “established by the State” insofar as such an interpretation — given the intervening decision of several dozen states not to establish their own exchanges — would produce untoward effects that Congress would not have intended or wanted when it enacted the PPACA. Specifically, the Chief Justice argued, insfoar as an interpretation of the PPACA would undermine the statute’s goals — such as by creating a “death spiral” of increasing costs and declining coverage — it is the Court’s job to avoid it. That the phrase “established by the State” was added to multiple places in the relevant statutory provision (Section 1401) at multiple times is immaterial. “Established by the State” need not exclude an exchange established by the federal government. The majority opinion shows no sympathy for the Solicitor General’s silly argument that “established by the State” was an undefined “statutory term of art.” No matter, for the government wins anyway.

There you have it -- Legal Gnosticism that enables the enlightened members of the majority to see beneath the words a meaning that is quite different than what the words say!

Justice Scalia was having none of this.

“This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it. In order to receive any money under §36B, an individual must enroll in an insurance plan through an ‘Exchange established by the State.’ The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B.”

* * *

“The Court interprets §36B to award tax credits on both federal and state Exchanges. It accepts that the ‘most natural sense’ of the phrase ‘Exchange established by the State’ is an Exchange established by a State. Ante, at 11. (Understatement, thy name is an opinion on the Afford- able Care Act!) Yet the opinion continues, with no semblance of shame, that ‘it is also possible that the phrase refers to all Exchanges—both State and Federal.’ Ante, at 13. (Impossible possibility, thy name is an opinion on the Affordable Care Act!)”

For all of Scalia's paraphrases of Shakespeare, he might have done better to eschew the Bard and instead channel Irenaeus, who assessed the Gnostic approach to scripture as follows:

When however, they are confuted from the Scriptures, they turn round and accuse these same scriptures, as if they were not correct, nor of authority, and assert that they are ambiguous, and that the truth cannot be extracted from them by those who are ignorant of tradition. For they allege that the truth was not delivered by means of written documents, but viva voce (orally)...

It takes but little effort to paraphrase that passage from Against Heresies into a passage worthy of the senior Associate Justice's dissent.

When however, the majority are confuted from the statute, they turn round and accuse that same statute, as if it was not correct, nor of authority, and assert that it is ambiguous, and that the truth cannot be extracted from it by those who are ignorant of their method For they allege that the meaning of the statute was not delivered by means of written documents...."

Yes, my friends, the Gnostics have returned and dwell among us. Today, however, they do not twist the Word of God, but instead the Constitution and the statutory law of the United States. Today's majority decision in King v. Burwell is nothing short of an act of Legal Gnosticism, based upon the premise that they alone can discern within the law what is really meant, even when the actual text says something other than what their doctrine claims it does. Who will stand against this heresy?

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Comments on The ObamaCare Ruling As Legal Gnosticism

The proper response is that of Nicea, to Gnosticism, Marcionism, Docetism, etc, etc., etc.: Anathema sit!

How we do that in a political context, to those holding a lifetime* appointment, is at least a two-pipe problem.

* While exhibiting "good behavior"

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