New York Times columnist Paul Krugman is an effective polemicist with a wide readership. So when he makes arguments that are at best factually wrong and at worst disingenuous, one cannot simply ignore them.
Which is unfortunate, because the arguments he made in an op-ed this Monday against the Supreme Court's decision to take up King v. Burwell, one of the cases challenging the IRS's ongoing expansion of the Affordable Care Act (ACA), are far less persuasive than his strident, self-assured rhetoric would suggest. To borrow Krugman's own phrasing, his argument represents not "serious reasoning" but "rabid partisanship" -- and it undermines the role of the judiciary.
At its core, the case involves a straightforward bit of statutory interpretation. In order to induce the states to establish and operate health care exchanges, Congress encouraged states to create their own health insurance exchanges under Section 1311 of the ACA and authorized tax credits to help qualifying individuals purchase health insurance "through an Exchange established by the State under 1311." As a failsafe, the ACA required the Secretary of Health and Human Services (HHS) to create federally facilitated exchanges in states that declined to set up their own exchanges under Section 1321. When 34 states declined to establish their own exchanges, the IRS issued a rule stating that it would issue tax credits through federal exchanges, notwithstanding the lack of any express authorization in the text of the ACA. It has been issuing such credits since January 1, 2014. The question is whether the ACA actually permits it to do so.
Krugman argues that only a "hostile" reading of the statute could justify the conclusion that the IRS's actions are unlawful. Further, he charges that any judge who would reach such a conclusion is not engaging in "serious reasoning," but, rather, is in the grasp of "rabid partisanship" or is actually "corrupt."
Simply put, Krugman's interpretation of the statute -- that the absence of subsidies for federal-run exchanges was a "typo" and not a cynical political gambit -- is not persuasive, and his anticipatory charges of judicial activism are baseless and irresponsible.
The Supreme Court has made plain that agencies cannot rewrite the law under the pretense of implementing it. Just this year, in Michigan v. Bay Mills Indian Community, the Court refused to engage in a "holistic" interpretation of the Indian Gaming Regulations Act to allow the state of Michigan to enjoin illegal gambling that did not take place on Indian lands. As Justice Kagan put it, writing for the Court, "This Court has no roving license, in even ordinary cases of statutory interpretation, to disregard clear language."
There is nothing that would justify a departure from precedent here. The structure of the law and the known facts about how the ACA was designed and rammed through Congress disclose that the ACA's supporters deliberately opted for a carrot-and-stick approach. In 2012, Jonathan Gruber, an MIT economist who helped design the Massachusetts health law that was the model for the ACA and identified himself as an "architect" of the law explained:
If you're a state and you don't set up an exchange, that means your citizens don't get their tax credits -- but your citizens still pay the taxes that support this bill. So you're essentially saying [to] your citizens you're going to pay all the taxes to help all the other states in the country.
In arguing that judges should accept an implausible interpretation of a statute, Krugman is calling for them to engage in advocacy for one side (the government) rather than adjudication. In every case of statutory interpretation, judges should remain neutral and adopt the most plausible reading of the law, taking into consideration text, context, and a realistic understanding of how the legislative process actually works.
To adopt an insight from Chief Justice John Marshall, it is emphatically the province of the judiciary to say what the law is, not what it ought to be. Krugman's call for judges to abdicate that responsibility may suit his political preferences now -- but when judges reflexively defer to government (as they often do today), those who "win" today will lose tomorrow.