The New England Journal of Medicine was released today, with its first assessment of the fallout of the Supreme Court’s decision not to gut Obamacare. Policy analysts writing in the NEJM have been generally supportive of Obamacare, and so of course they’re happy with the result, declaring that it has removed “the largest remaining cloud of judicial uncertainty hanging over the Affordable Care Act” and advocating that now the legislative agenda focus on real improvements to the established law.

The NEJM article also remarks on the importance of assessing the text of the legislation in its full context, not just the strict text of the specific provision. It argues that this is a well-understood principle of Supreme Court jurisprudence, and gives the following example:

An earlier example of this principle comes from the Court’s 2000 decision in FDA v. Brown and Williamson, which King cites or quotes several times. Brown and Williamson held that (before more recent legislation) the Food and Drug Administration (FDA) lacked authority to regulate cigarettes as devices that deliver the drug nicotine. Despite the FDA statute’s broad literal definitions of “drug” and “device,” the Court concluded that “considering the [statute] as a whole, it is clear that Congress intended to exclude tobacco products from the FDA’s jurisdiction.”

This past decision also makes perfect sense to me. While tobacco is clearly a drug, the FDA is not charged with monitoring recreational drugs, and tobacco products should be monitored separately or the FDA’s authority extended to them through an act of Congress.

Interestingly, this is also what the architects and defenders of the King vs. Burwell case thought, back when the FDA v. Brown and Williamson case was decided, and repeatedly since. For example, in a 2007 post the Heritage Foundation cites it as an example of an exception to the trend towards an administrative state. I can’t find any evidence that the legal experts at the Heritage Foundation have decided that this example of the Supreme Court not showing “deference to agencies” must have been wrong due to its willingness to invoke “context,” in which (to quote Scalia) “words have no meaning.” Similarly, the Cato Institute has referred positively to the appeal to context in FDA vs. Brown and Williamson in both its 2006-2007 and 2008-2009 Supreme Court Reviews (see page 201 of the 2006-2007 Review, or a footnote on page 126 of the 2008-2009 Review). The Cato Institute has also issued multiple Amicus Briefs for other court cases where they think that the FDA v. Brown and Williamson case might help to enforce the importance of context. For example, in their Amicus Brief on Texas vs. United States of America (Case 1:14-cv-254) , for example, they argue (citing the case):

The court must “fit, if possible, all parts [of the statute] into an harmonious whole” and use “common sense” to determine the scope of Congress’s delegation to an agency.

Interesting how much their opinion of how the Supreme Court should interpret statutes has changed in just a short time: their amicus brief to that case was submitted in January 2015 but by July 2015 they think that reading the law in its overall context

establishes a precedent that could let any president modify, amend, or suspend any enacted law at his or her whim

What a difference 6 months makes! Apparently now “common sense” is no friend of liberty, and in following the precedent of laws that the Cato Institute relied on heavily (until this year!) the Supreme Court has made it possible for presidents to do anything they want. I guess words really do mean anything these days …

But it’s not just the Cato Institute that appears to have revolutionized its view of the role of context and common sense in the past little while. Four of the majority in King vs. Burwell were dissenters in FDA v Brown and Williamson, the common judge of the two cases being Roberts. Indeed, Scalia agreed fully with Roberts back then that common sense was important, but now appears to think it’s “applesauce” – and the Heritage Institute thinks that “liberals” were shocked then, and applauding now. About, presumably, the same thing.

Where does this leave us? Should there be a common sense test for judges to see if they all agree? Or should we perhaps just roll dice to determine the outcome of Supreme Court decisions where context and common sense are required? Or, perhaps, we could accept that the Supreme Court as it currently works is just an ideological rubber stamp, and the battles in Congress to stack it are way more important than the judges who are on it. It might be of particular value to Republicans to get some bipartisan agreement on this quickly: they’re going to lose the 2016 election after Donald Trump eats a puppy on live TV, and Hilary Clinton is going to get the chance to appoint a couple more judges, which in combination with Obama’s legacy will mean that the nation will be at the mercy of a liberal majority definition of “common sense” for the next 20 years (or 40, if Clinton can find a few young and talented female judges to nominate). Perhaps a move to introduce fixed term limits, and a more objective and less partisan nomination process, might be a good idea. How about 12 year term limits, and nominees for replacement have to be recommended by a consensus of the Supreme Court Bench itself? That would iron out both the kinks in the nomination process and the risk that a single president could dominate the court for years after he or she has gone to the Great Presidential Library in the Sky – a domination, we should note, that will grow over time as life expectancies do.

Of course it’s not going to happen, so Americans will continue to be subject to the tyranny of a system that is clearly broken, invented by a bunch of short-sighted slave-owners a couple of hundred years ago and completely unsuited to the modern world, and now used as a battleground for political retribution rather than solid constitutional decision. Still, at least the USA is on the way to universal health coverage!

 

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