Evening Must-Read: Nicholas Bagley: Three Words and the Future of the Affordable Care Act

Nicholas Bagley:
Three Words and the Future of the Affordable Care Act:
“Adler and Cannon have offered a strained interpretation of the ACA that…

…if accepted, would make a hash of other provisions… and undermine its stated purpose…. The more natural reading… [is that] the “by the State” language just reflects Congress’s assumption, unchallenged at the time, that the states would establish their own exchanges. But even if you think that Adler and Cannon’s claim is plausible… the contrary interpretation offered by the government is at least reasonable.

That brings me to the aspect of their argument that troubles me the most: their unyielding conviction that they’ve identified the only possible construction of the ACA. Nowhere do they so much as acknowledge the possibility that maybe, just maybe, they’re wrong. That’s because they can’t admit to doubt. Because of the deference extended to agency interpretation, doubt means they lose.

But their unwillingness even to acknowledge ambiguity reflects an important difference between legal advocacy and neutral interpretation…. The courts would violate their obligation of fidelity in statutory construction if they mistook [their legal] ingenuity for genuine obeisance to congressional will. The latest challenge to the ACA is political activism masquerading as statutory restraint.