ObamaCare Forever (maybe)…

Full Opinion and Dissent

The Supreme Court of the United States (SCOTUS) today handed down their decision in King v Burwell 576 US (2015), that they heard earlier this year. It was the last major challenge to the Affordable Care Act (or ‘ObamaCare’) coming through the court system, and the Justices voted 6-3 to uphold the Act as it was currently in force. And, the decision came down to what the definition of “state” is.

Obamacare didn’t create an US Version of the NHS, but it did make important changes to the American healthcare system. The Act provided that “each State shall…establish an American Health Benefit Exchange” [s.18031] but, they could opt-out of creating a State Exchange, in which case the Federal government “shall…establish and operate such Exchange within the State. [s.18041]”
These exchanges couldn’t turn people away based on pre-existing conditions, but in return everyone in America had to get insurance. This, appears unfairly harsh for the poorest, but the AFA had in it a compensatory mechanism. The poorest people buying Insurance from Government ‘Exchanges’ could get subsidies to help with the cost of healthcare.
It’s important to grasp just how intertwined these three things are – if you remove one strand (either the guaranteed acceptance, compulsory purchase and supported subsidy) then the whole system falls. If people can be knocked back, they can’t buy any healthcare. If people don’t have to have health coverage, they will only buy insurance when they need it, so they system becomes underfunded. And if you remove subsides for the worst-off, they can’t afford insurance, and so they are pushed into poverty to comply with the law.
It is this provision of subsidy which gave rise to the latest case

The AFA states that the subsidies are available to US Citizens who are enrolled in Health Insurance schemes through “an Exchange established by the State…” The question in this case was whether people who enrolled in their Health Insurance through an exchange run by the Federal Government (because the State didn’t create their own) were eligible for the subsidies too. It was, essentially, a question of statutory interpretation.

The SCOTUS Dissenters (Justices Scalia, Thomas and Alito) accepted the argument that the law was written the way it was deliberately, and that the clause must be examined literally. To quote the introduction of Scalia’s (rather forceful) dissent:

The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so. [Page 1; Dissent]

This is exactly what was expected from Justice Scalia. Notwithstanding his being a conservative Justice on the court, he is an ardent adherent to literal interpretation of the Constitution and the law, seeking to look squarely at the words on the page. He gives a sucinct insight to his thought processes on page 2 of his dissent:

In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B. [Page 2; Dissent]

This, it seems, is the clearest way to deal with the problem. If the law says something, we should give effect to that thing, even if they meant something else. Scalia spends 21 pages justifying this view.¹ Yet, despite these efforts, the majority of the court disagreed.

Instead, the majority argued that, in order to properly understand the law, you had to look beyond the immediate definition of the words. Justice Roberts, delivering the Opinion of the Court, made thrtwoee arguments that the phrase “established by the State” was at least ambiguous. The first was that, even if we were to take a literal approach to the Act, it was clear that there was not meant to be any difference between State-run and Federal-run exchanges. He suggests that when States don’t create an exchange, the Federal must “establish and operate such Exchange” (emphasis added). But saying “such exchange”, he argues that there is no difference between the two kinds of exchange – that Federal Government is merely doing the State’s function. [Page 10; Opinion]
Further, he examines the way the various sections of the Act interact with each other. The Act defines  “Exchange” to mean “an…Exchange established under section 18031″, which means that s.18041 (which establishes the Federal Government’s role in the whole affair), would actually mean that the Federal Government must “establish and operate such an Exchange established under section 18031”.
And, again, by using the words “such Exchange,” the Act indicates that State and Federal Exchanges should be the same. But, as I noted  at the outset, the tax credit subsidy is fundamental to the entire Act. So if tax credits were available only on state-run exchanges, it would go against the fundamental principles of the Act. [Page 12/13; Opinion] This is a far more purposive approach than Scalia’s dissent.
So why, then, did the Act include the phrase “established by the State” in s.18031 if it was so redundant? Why cause raise these questions in the first place? Roberts states that the Act “…contains more than a few examples of inartful drafting.” due the the way it passed through Congress. The Fact the Act was so contentious, required a great deal of compromise and had many, many redrafts led to an imperfect Act which was laden with small and unhelpful inconsistencies. [Page 14; Opinion]

So if the phrase “established by the State” is ambiguous, what should it be taken to mean? Should it have the smaller meaning to be literally “States”, or is there justification for a wider meaning? Roberts argues there is a justification – and it involves looking at the bigger picture. He accepts the argument that it is wrong to view the section in isolation, and it would be just as unhelpful to look at it simply within the context of the subsidising Tax credits, but instead, it must be examined within the entire Act. He states:

While the meaning of the phrase “an Exchange established by the State under [42 U. S. C. §18031]” may seem plain “when viewed in isolation,” such a reading turns out to be “untenable in light of [the statute] as a whole.” {Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 343 (1994).} In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase. [Page 20; Opinion]

A contextual approach is plain here, even moreso in the concluding statements in Roberts’ Opinion, where it is clear he had the aims of the Act at heart when seeking to decipher the ambiguous wording:

Th[e] credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid.

and later:

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt. The judgment of the United States Court of [both Page 21; Opinion]


Truth be told, I do harbour some sympathy for Justice Scalia’s literal approach. The phrase “established by the State” does seem to carry a clear and unambiguous meaning – but this only applies when it is looked at in that section alone. When viewed, not as a law of itself, but merely one provision in a series of many interlocking, interacting provisions which make up an Act, this clarity fades away. Further, when considering the legislative purpose of the Act which was passed (however imperfect and poorly drafted), it is clear there was intended to be no difference between State-run and Federal-run Health exchanges. Given the fundamental nature of the provision being debated, it would need require an explicit and clear instruction to create one, which the section in question certainly is not.

What will be interesting going forward  will be to see, now that the last Judicial challenge to the Affordable Care Act has been rejected, is whether those States who refused to open their own exchanges, will now do so. So close to an election, it is unlikely that the hard-line Republicans will change their position – but for the more moderate Congressmen and Governors, the growing acceptance (dare I say appeal?) of Obamacare, coupled with its growing permanency, may lead them to think again.

¹ You can read the entirety of Scalia’s dissent if you want, but here are some of my personal highlights:
 – The “most natural sense” of the phrase “Exchange established by the State” is an Exchange established by a State.
 – The Court’s next bit of interpretive jiggery-pokery involves…
 – We should start calling this law SCOTUScare.

A Permanent Parliament…

…or a post where I really want you to read the footnotes.

My brother has put a poster up on my wall. I don’t like it, but if I take it down he’s just going to moan. So I probably won’t take it down. But you see, he doesn’t trust me – it’s against his very nature to trust me, so he wants to make sure that I can’t take it down. So, he’s put sticky tape on the poster to attach it to the wall. But he’s not really thought this through. Sure, it seems safer, but really it’s not too much of a barrier – if I want to take the poster off, I just have to take the tape off as well. Simple. Tonight, the House of Commons voted on a similar problem.

It’s the cornerstone of British Constitutionalism that the Westminster Parliament is Sovereign.¹ This means it can make and unmake any law it so chooses. The logical extension of this is that Parliament cannot bind itself. It could make a law, but a future Parliament (or indeed, the same Parliament later on) could then repeal it. Parliament, therefore, cannot permanently limit its own sovereignty – but could temporarily deny it.
The Scotland Bill currently going through Westminster kind of goes against the grain. Section 1 of the Scotland Act 1998 states (rather famously):

There shall be a Scottish Parliament.

The new Scotland Bill has since it was a glint in the draftsman’s eye, has sought to amend the Scotland Act to contain a section 1A, reading:

A Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional arrangements.

This, as many pointed out at the time, is a pointless provision that doesn’t do anything. The mere fact that the Scottish Parliament is created is sufficient and all that can protect its existence. Legally, Westminster could repeal the Scotland Act 1998 and remove the Scottish Parliament, but politically, they never ever would. In reality, there is a far more powerful political safeguard than the UK Constitution could ever provide.
If Westminster did, at some point in the future, decide that it wanted to ditch the Scottish Parliament, this clause wouldn’t stop it. All Parliament would have to do is, instead of repealing just Section 1, it would repeal Section 1A then Section 1. It’d be bad and wrong, but the government had the votes to do one, it will have the votes to do the other – it is no barrier at all. Section 1A is sticky tape. But the proposed Section 1A also still exists.

The SNP proposed an amendment to the Scotland Bill (which failed) which would insert the following:

(1A) The Scottish Parliament is a permanent part of the United Kingdom’s constitution.

(1B) Subsection (1) or (1A) may be repealed only if—
(a) the Scottish Parliament has consented to the proposed
repeal, and
(b) a referendum has been held in Scotland on the proposed
repeal and a majority of those voting at the referendum
have consented to it.

It gives some degree of additional protection in that it requires a popular referendum – but it is equally redundant. Say a Government did want to get rid of the Scottish Parliament. The doctrine of Parliamentary Sovereignty means that Parliament can legitimately repeal section 1B, before going on to abolish the Parliament. Instead of having to repeal 1 section (as it would just now), or 2 (if the Scotland Bill as it stands passes), it would have to repeal 3, and again, if the Government has enough support to repeal one section, it will have the support to repeal them all.
In short, the SNP’s amendment was just as in ineffectual as the proposal it sought to replace. Yes, if there were attempts to remove the referendum requirement from the Scotland Act, we would know that the Government were on manoeuvres – but we would know that equally well, and with the same effect, if they attempted to repeal the Parliament itself.²

So the numerous MPs and others that were ‘outraged’ that the government voted against making the Scottish Parliament ‘permanent’ are one of two things. They are either constitutional unaware, or they are attempting to make a mountain out of a very small wormhole (and, let’s be honest, probably succeeding). Either way, even if the Scottish Parliament isn’t legally permanent, the political force protecting it is too great – it won’t be going anywhere.

¹ Yes, it is a British principle. The (im)famous statement that Parliamentary Sovereignty is a “…distinctly English principle which has no counterpart in Scottish Constitutional Law” from MacCormick v Lord Advocate 1953 SC 396 at 411 is obiter, and not an established statement of the law.

² Whether this is possible now is, believe it or not, a (seldom asked) question. In the really important case of  AXA General Insurance v Scottish Ministers and Others [[2011] UKSC 46 Lord Hope (the Scottish Deputy President of the UKSC at the time) said that the Scottish Parliament was a “self-standing democratically elected legislature” [46]. This seems to suggest that, even if the Scottland Act was repealed, the Scottish Parliament could continue because it is “self-standing”. Quite what Lord Hope was thinking when he said this I don’t know – and I’ve bottled out of my only opportunity to ask him so far. I hope one day I will.

Lies, Damned Lies and Juristics…

…or ‘Scots Law Strikes Again’.

In Scotland, as I’ve said before, the burden of a court case is divided up. The Jury are the most important people in a court room, but they are the keepers of the facts. I’ve argued the sometimes that can lead to problems, but it remains that the jury determines the facts of the case. But the Judge is important too, because they are the keeper of ‘The Law’. It is their duty to ensure, not only that the law is observed, but to help the jury in determining the law. Before a jury is sent out to deliberate their verdict, the Judge explains the law to them, what is required to have been shown, and what should happen in certain circumstances.

In order to be found guilty of a crime, the jury has to find you guilty. In order for the jury to do that, the judge must be satisfied (as is their role) that the Prosecution has led evidence that could prove the crime. That is not to say that the judge feels that the crime has been proven on the basis of that evidence, but that if everything the prosecution has said is true, then the crime may have happened.
Take, for example, theft. The Prosecution would have to lead evidence that

  1. ‘A’ was in possession of something that was is not ‘A’s; and
  2. ‘A’ did not have the permission of the owner to have that item.

If the Prosecution can only lead evidence that shows that A had something in his possession that wasn’t his, then they’ve not shown that theft has occurred. Equally, if they can only lead evidence that shows that ‘A’ didn’t have the owner’s permission to have the item, they have not shown that theft has occurred either. Only if they can show (and just now, corroborate) that all parts of the crime have occurred through evidence, can the they be said to have done their job. It is then up for the jury to decide whether the evidence that has been presented to them is reliable enough to establish the guilt. If the Prosecution fails to do this, then it has failed in its job. The Accused person has no case to answer because the potential criminal activity cannot be established from what has been presented to the court. This is what we mean by the presumption of innocence – the Prosecution must attempt to show the accused person is guilty, there is no onus on the accused person to show they are innocent (though if they can that’s usually a good idea too).

Which brings us to today’s happenings in HMA v Coulson. Coulson was charged with perjury in the case of HMA v [Tommy] Sheridan & [Gail] Sheridan, which stemmed from Tommy Sheridan’s defamation action against the News of the World. It was alleged that Coulson perjured himself when he denied knowing anything about phone hacking while on the stand, when it later transpired he did (as was shown in the ‘Phone Hacking trials’ down in England).
Scots Law, as has been shown many times before, is a funny thing. While in England and Wales perjury is handily defined in the Perjury Act 1911, in Scotland it is still an offence defined at the common law, i.e. by the courts. And the development of the criminal Scots Law has led to a slightly different place than down south. IN common with everywhere else we have the requirements that a person:

  • Is under oath (or affirmation); and
  • Makes a statement they know is untrue, or does not believe to be true.

but, in addition, we have a (as far as I can find) unique requirement that:

  • The evidence given was “relevant to the point at issue in the original trial, or relates to the credibility of a witness at the original trial” [SME – Criminal Law (Re-Issue); 18(1)(b) Para 477].

In the Coulson Case, each of these points can be be divided by their responsibilities. There’s no dispute that Coulson was under oath when his testimony was made – that’s not important here. The question over whether Coulson knew what he was saying was true or untrue is one of fact, and so for the jury to decide. The third component, however, is one for the law. And its this requirement that caused the judge to step in on Monday.

The Judge today said, in his explanation to the jury, said:

In 2010, Mr Sheridan had been on trial for perjuring himself when he gave evidence in the civil proceedings in his action for defamation against the News of the World. So the question of relevancy for me was whether the alleged false evidence given by Mr Coulson in that trial was relevant to the proof of Mr Sheridan’s perjury or relevant to Mr Coulson’s credibility as a witness in the perjury trial of Mr Sheridan. You will recall that Mr Coulson said in Mr Sheridan’s perjury trial that the person speaking on a video tape was Mr Sheridan. After two days of legal submissions last week and having considered the matter, I decided that the crown had not led sufficient evidence to satisfy me that the allegedly false evidence was relevant to proof of the charge in Mr Sheridan’s trial or to Mr Coulson’s credibility at that trial.

What this means is that the central matter in the Sheridan Trial was whether or not Sheridan attended a nightclub in Manchester (and to part in various related activities). Coulson (who was called by Sheridan in his defence – after he ditched his legal team that advised him not to) gave evidence that was not relevant to demonstrating that this occurred, and was even disavowed by the Prosecution in the Sheridan Case. We don’t know what the jury would have said if they had been asked to return their verdict – but what the judge is saying is EVEN IF they had said ‘yeah, he knew he was lying’ that wouldn’t have been enough to prove perjury because the relevancy would ALWAYS have been missing.

So, from all this, two sets of questions arise. The first is why did Coulson’s defence team only brought this up recently? Well, it seems that they didn’t. Before the trial began, the defence team appear to have raised a ‘plea to the relevancy’ of the indictment – the legal version of going “Yeah – so what”. The Judge, rightly in my view, decided that in order to assess the strength of the case he had to hear what the case actually was. If this was a civil case, it’s be called a “proof before answer”, the judge saying “I’ll know it when I see it”. In this case, after the prosecution finished its case on Friday, the judge wanted to assess the evidence and make his decision. He did this over the weekend.
He decided that the prosecution had failed to meet all the parts of the perjury test, and so had failed to bring a relevant charge. The defence’s plea to the relevancy was accepted so on Monday, Coulson was acquitted on the basis he had no case to answer. The rules allow the Prosecution 2 days to appeal this decision, but they have not, so everything became official today.

The second question is what this acquittal means. Firstly, and most importantly, It doesn’t mean that Coulson didn’t lie in court. It is entirely possible that Coulson’s pants smoulder at this very moment, but we don’t know that he has. We just know that he did not perjure himself. But it is also important to note that Coulson didn’t “get off with it” on a technicality. It isn’t corruptions or a swizz or a bit of legal magic – it is a contention that the accused person did not break the law. Any defence lawyer worth their salt would have raised the point that acquitted Coulson today. I know that because of a very simple reason: The source I cited earlier on.
The Stair Memorial Encyclopaedia is the Bible of Scots Law. All Scots Law. Every lawyer, legal scholar and law student in Scotland will have access to it somehow. In their firm’s Library, on-line, at University – they’ll have it. And if they follow the citation above, they’ll find the important page. At paragraph 474 in section 18(1)(b) in the Criminal Law Volume (re-issued), they will find the sentence, “To found a charge of perjury the evidence given at the original trial must have been relevant and competent [emphasis added]”. It’s there for everyone to see. It is just as important a part to the Scots Law definition of perjury as the “lying under oath” part is. It is not a technicality; it is the law.

All of this overlooks the fact that, even if Coulson’s testimony were relevant in Sheridan’s perjury trial, and even if Coulson had been found guilty…it would all have been very unlikely to have helped Sheridan overturn his perjury conviction, nor strengthen his case in the News of the World’s appeal in their defamation action. To Use the words of Andrew Tickell (or Peaty to his friends), “Sheridan wasn’t convicted on the evidence of Andy Coulson“.

So, as exciting as all this was…it was never going to lead anywhere meaningful.