A Word to Justice Kennedy: In Obamacare Lawsuit, "Congress Can Fix It" Can Cut Either Way

04/08/2015 02:36 pm ET | Updated Jun 08, 2015

Plaintiffs' weak arguments in King v. Burrell, the latest legal assault on the Affordable Care Act, have led to a default position that, if Congress does not like the "plain words" of the law, they can just pass a corrective amendment to fix it.

Regrettably, the "Congress-can-fix-it" argument has only been answered by pointing out current Congress' total dysfunction, a position unlikely to sway certain Justices who have shown they are quite willing to ignore reality when it suits them, and invent it when it does not.

Congressional inability to act, for example, was one of Justice Scalia's key arguments for striking down a key provision of the Voting Rights Act (Shelby County v. Holder) when he overrode near unanimity in Congress by claiming that, what he called "racial entitlement," is too difficult for Congress to eliminate. Thus, the Court had to ignore both the 15th Amendment and thousands of pages of Congressional testimony that led to the conclusion that certain places still discriminated against racial minorities. (Ya think?!)

Justice Anthony Kennedy caused a recent stir when he pointed out that the Court cannot take cognizance of another branch's dysfunction, but must assume that they are fully operational. That led to concern that the Court would not listen to arguments that Congress cannot fix the Affordable Care Act's so-called "plain words," due to its dysfunction.

But, Justice Kennedy, "Congress-can-fix-it" can cut either way.

The Court could, if it were so inclined, indicate that the IRS interpretation has been operative for a couple of years, and that Congress could just as easily pass an amendment to the Affordable Care Act stating that the IRS is wrong, as it can fix it by passing an amendment eliminating the words "established by the State."

I have pointed out two, of what are likely thousands, of laws interpreted by the Courts and agencies differently than their so-called "plain words" would require.

Indeed, in those two cases, Congress used limiting adverbs ("exclusively" and "solely") that the agency and Court apparently ignored, whereas no such limiting adverb is used in the Affordable Care Act language.

Congress could, if it wished, correct those interpretations as well. That it has not indicates that Congress is okay with them.

Congress has not acted to correct the IRS' interpretation of the Affordable Care Act. It could as easily do that as it could act to eliminate the words "established by the States."

The "Congress-can-fix-it" argument is, therefore, not dispositive one way or the other. If the justices want to overturn the IRS' interpretation, there is no greater weight to the "Congress-can-fix-it" argument for that proposition than for the Court to uphold the IRS interpretation because Congress can just as easily fix that.

Indeed, since Congress knows the IRS' interpretation, and has not passed a law to fix it, there is a bit more weight on the side of assuming Congress is okay with it, as has occurred with many other laws that are even written with limiting adverbs such as "exclusively."

SCOTUS has no safe harbor in the "Congress-can-fix-it" argument. Any reliance on it reveals only the justices' political bias, not disinterested legal analysis.