Is this a frivolous challenge to the Affordable Care Act? Ofer Raban says it is –

…one provision of the ACA provides that “Each State shall…establish an American Health Benefit Exchange” — thereby implying that states must establish such exchanges. It is not surprising, therefore, that the provision extending health insurance subsidies for low income households speaks of insurance purchased on exchanges “established by the state[s].”

However, other provisions of the ACA declare that it is up to the states whether to establish a health care exchange and that if a state chooses not to establish one, the federal government would establish a federally operated substitute.

Raban states that “relentless Republican opposition” resulted in only 16 states establishing exchanges on their own, while the other 34 states went with a federal exchange. He continues –

The frivolous claim in the case is simple: Since the language in the subsidies provision refers to insurance purchased on exchanges “established by the state[s],” the government is precluded — so goes the claim — from giving those subsidies to those who purchased their insurance on the federally operated exchanges that came to substitute for those state-exchanges that were never established.

This statutory interpretation makes no sense. As one federal judge put it: This “literal reading of the [statute] renders the entire Congressional scheme nonsensical.” The ACA stretches over 900 pages, and contains hundreds of provisions which, as often happens, are not always perfectly consistent. (I already mentioned the provision that seems to require state-established exchanges, and the other that makes it optional.) When faced with such inconsistencies, judges are supposed to effectuate statutes in a sensible manner. But the main argument in the case does not appeal to any good sense. Instead, it appeals to a theory of legal interpretation that abjures good sense in favor of textual literalism: This is the text, they say, and that is all that matters — even if the ensuing result is an “odd” one.

Raban calls this “interpretative fundamentalism” and writes that the Supreme Court “recently read the Federal Bankruptcy Code in a nonliteral way, after determining that the literal reading ‘would produce senseless results that we do not think Congress intended.'”

It is not the job of judges to engage in guesswork about what legislators “intended.” It’s their job to examine the law as written. If a literal reading of a law seems nonsensical, then it’s because the law as written is nonsensical. Raban admitted as much himself in mentioning the the conflicting provisions.

Trying to “effectuate statutes” to arrive at a “sensible” conclusion instead of an “odd” one undermines equality before the law. Not only is the law not applied equally – different results for different people – but each and every judge will have a different idea of how to apply it. What one judge deems good sense, another might consider unfair or harmful.

Also note this passage – “These subsidies are the heart of the ACA: Without them, millions of people would not be able to afford health insurance and would be exempt from purchasing it. And this, in turn, would deprive insurers of the broad-based participation that makes it financially feasible to forbid them to deny coverage or charge higher premiums of sick or high-risk individuals.” Insurers are no longer allowed to decide who they do or don’t want to do business with, and citizens are no longer allowed to decide which commercial transactions they do or don’t want to engage in. Welcome to 2015, comrades.

This is not some HuffPo blogger or one of the Vox guys. The credit at the end of the column read “Ofer Raban teaches constitutional and criminal law at the University of Oregon School of Law.”