David R. Henderson  

Kling on the Constitution and the Common Law

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According to a legal theory I am about to sketch, the Supreme Court would let stand the subsidies that are being paid to people through the Federal health care exchange, in spite of the language in the law that says only state exchanges are entitled to pass on subsidies. Instead, the Supreme Court would say that from a common-law perspective, the subsidies on the Federal exchange are what people have come to expect.
So writes Arnold Kling, former blogger at Econlog, in "The Supreme Court and the Text of the Law."

My question is "which people?"

The Obama administration decided that, despite the law's language, the subsidies apply even in states whose governments have not set up their own exchanges. So it's clear what the Obama administration's expectations were. But that's a small number of people. Well then, maybe we could look at what one of the architects of the law, Jonathan Gruber, thought it meant. Gruber thought (see here, starting at the 31:50 point) that the subsidies would not apply in states that didn't set up the exchanges. Maybe we could look at what Oklahoma's attorney general Scott Pruitt thought it meant. He agreed with Gruber.

The problem with the "what people have come to expect" is that it gives weight to some people's expectations over those of other people. How does one find a way out? That's hard when all we have is expectations. It's easy, though, when we actually have a fairly clearly written law. The way out is to insist that the law be interpreted as written.

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COMMENTS (8 to date)
Jim Glass writes:

The solution to the ACA "intent of Congress" problem is simple, no court case necessary. And it is used all the time, as drafting mistakes that create this problem occur in legislation all the time.

That is: Congress enacts a follow-up Technical Corrections Act that clarifies its intent by correcting the problematic legislative wording. Perfectly routine.

So all Obama and the left have to do is request a Technical Corrections Act from Congress clarifying its intent and ... ooops! They don't want the intent of Congress to be implemented re the ACA.

Thus we see the wisdom in Thomas Jefferson's words regarding legislative policy...

“Great innovations should not be forced on slender majorities”

... much less on no majority that ever existed at all.

Andrew_FL writes:

Am I wrong in understanding the Common Law to uphold the sanctity of contract? I'm confused because taken literally Kling is suggesting courts could essentially rip up a contract on the basis of what "people agree" or "have agreed" the contract should say.

Most acutely, the Constitution is an explicit Social Contract between the people of the United States and their Government, and Kling essentially says that if people "understand" the law differently from what the this contract says, well, so much for the sanctity of contract.

JLV writes:

Gruber's micro-simulation model assumed that subsidies would be available in federal exchange states, IIRC.

But, you know, the Moops invaded Spain, so whatever.

David R. Henderson writes:

Gruber's micro-simulation model assumed that subsidies would be available in federal exchange states, IIRC.
I don’t think Gruber thought in 2009 and 2010 that there would be any states that would refuse to set up the exchanges. So what you might be referring to is that he assumed that all states would have state exchanges.

Phil writes:

David wrote:

The way out is to insist that the law be interpreted as written.

If only it were that simple. For every rule of statutory interpretation, there is a counter-rule. And there are inconsistent theories of interpretation (i.e., textualism, intentionalism, pragmatism). A few examples:

  • If the language of a statute is plain and unambiguous it must be given effect, unless a literal interpretation would lead to absurd or mischievous consequences or thwart the manifest purpose.
  • Every word and clause must be given effect, unless inadvertently inserted into the statute or if repugnant to the rest of the statute, certain words may be rejected as surplussage.
  • Words are to be interpreted according to the proper grammatical effect of their arrangement within the statute, unless strict adherent to the rules of grammar would defeat the purpose of the statute.
  • A statute cannot go beyond its text, but to effect the purpose of the statute, the statute may be implemented beyond its text.

The Congressional Research Service's guide for statutory interpretation was published because "The Supreme Court has expressed an interest 'that Congress be able to legislate against a background of clear interpretive rules, so that it may know the effect of the language it adopts.' This report identifies and describes some of the more important rules and conventions of interpretation that the Court applies." These more important rules took 55 pages to explain.

It will not be hard for both sides of the issue to argue that their interpreation is the proper one.

Zeke writes:

This seems highly problematic. First, how is a judge to know what is commonly expected? Opinion polls? Whose expectations count? What if opinion is divided 51-49? Should the majority carry the day? If we want a super majority, how much counts? 60%? 80%? This seems untenable.

Let us assume we can get past that problem. He would seem to handle legislation as some sort of guideline -- a suggestion of what popular will is on a subject matter. But if the Court somehow divines the common understanding and it conflicts with the legislation, then Kling seemingly argues the court should deviate from the legislation. However, that brings Kling back to the first problem of figuring out what is commonly expected.

So, let us treat legislation as reflection of the general will (a highly dubious position, but one I will accept ad arguendo). Now what do courts do? Well, they have to implement the legislation. How do they implement it? By examining what it says. That is, there will still be an interpretive aspect to the court system.

Now, perhaps Kling is suggesting courts move away from textualist arguments to teleological arguments about legislation, as that is how people commonly understand legislation. But that is still an interpretive process. He hasn't eliminated a conflict; he is just giving a different answer to it.

Finally, I take a bit of umbrage with how he defines common law. I see it as dispute centric rulings based on general principles of law (i.e. Pacta Sunt Servanda) that evolves over time to create more tailored rules for our specific place and time (i.e. changes to ad coelum rule with the advent of planes). The certainty and authority of the rulings are found in their ability to be tied to precedent. Kling seemingly suggests common law's authority derives from interpreting the common expectation about law.

He seemingly is conflating norms (what people think the law ought to be) and common law. They are, in fact, two different yet related things. Robert Ellickson explained how norms govern (and are probably more valuable) in closed-knit societies where interactions are iterative. Yet when you lose either the smallness of the society or allow for one-off games/big stakes (think torts involving transient populations such as motorists OR commercial dealings in NYC amongst people outside their specific industry), then norms lose their power and you need some kind of law. They might have some overlap, but they are intending to organize society under different sets of circumstances. They are complimentary systems, not competitive. We shouldn’t try to force norms onto law, just as much as we shouldn’t force law onto norms.

Les Baker writes:

Common law "rules of interpretation" are just guidelines that courts resort to in order to explain the meaning they purport to find in a text that is ambiguous or uncertain, not actual rules that bind courts to anything. Phil is absolutely correct in observing that for any such rule a lawyer can invoke, the opposing lawyer can almost always invoke an equal and opposite counter rule.

There are two distinct sets of common law "rules" for interpreting obligations. One set comprises the rules of contract interpretation, which apply to obligations arising from agreements between parties to do or not to do a certain thing in the future. These rules are supposed to give effect to the intentions of the parties to the contract, and can include giving effect to the expectations of parties, on the principle that a party making a promise intended it to mean what the party receiving a promise would reasonably expect the promise to mean.

The other set comprises rules for interpreting obligations that arise under law, in other words, for all obligations except those arising under contract. These other rules include rules of statutory interpretation. In applying these rules, the courts seek to give effect to the intention of the party that drafted the statute, or other instrument giving rise to the obligation. In applying these rules, the expectations of beneficiaries are irrelevant. Statutes aren't agreements between contracting parties.

Arnold Kling seems to be arguing that the Supreme Court should apply an alleged common law rule of contract interpretation to resolve a statutory interpretation problem. I would be very surprised to see the Supreme Court, or any court to announce a decision on such a novel basis.

AS writes:

Any deviation from the original interpretation of the constitution should require an amendment. This sets the bar sufficiently high that only the most necessary expansions in federal government power will be passed. Unfortunately government has been shirking its duty to adhere to the constitution, and no one stops it.

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