Here's The Legal Theory That Could Kill Obamacare

Subscribers to a particularly stringent legal theory pose the greatest challenge to the Affordable Care Act (ACA), better known as Obamacare, Jeffrey Toobin writes in The New Yorker.

Opponents have pointed to one line in the law's text stating that healthcare subsidies are to be made available through exchanges, or marketplaces, "established by the State." But since many states never created their own online healthcare exchanges, the Obama administration created a federal exchange at healthcare.gov to serve individuals in those states.

Some members of the legal community who agree with a legal theory known as textualism are arguing that the federal exchange is not authorized because the law only explicitly mentions state exchanges. In a victory for textualists, the U.S. Court of Appeals for the D.C. Circuit ruled in a 2-1 decision in July that ACA health insurance subsidies are invalid in 36 states with federal health insurance marketplaces.

The textualist theory, championed by U.S. Supreme Court Justice Antonin Scalia, stresses that courts should interpret laws based solely on their text, regardless of the true intention of legislators who passed the laws in the first place, The New Yorker reported. Critics of textualism, like chief judge on the second circuit Robert A. Katzmann, argue that when a law's text is ambiguous judges should then consider the greater picture of what legislators in Congress have said in debates and committee reports. But Scalia is against any such interpretation beyond the text of the law itself.

"As a textualist, Justice Scalia totally rejects reliance on legislative history or legislative intent," wrote Claremont McKenna College Professor Ralph A. Rossum in his essay titled, The Textualist Jurisprudence of Justice Scalia. "He invariably criticizes his colleagues for turning to committee reports, or even floor debates, to ascertain what a law means." To Scalia and textualists like him, judges should "interpret the text alone and nothing else. The law should be understood to mean what it says, and say what it means," Rossum added.

The benefit of the textualist theory, in Scalia's eyes, is that it prevents judges from being impacted by bias that can plague politically-charged issues like the Affordable Care Act. "Now the main danger of the Constitution - or, for that matter, in judicial interpretation of any law - is that the judges will mistake their own predilections for the law," said Scalia in a 1988 address at the University of Cincinnati.