Once upon a time, there was a Supreme Court Justice. This Justice had three clerks. Their names were Will, Elizabeth, and Amanda. One day, the Justice instructed Will to write a memo by the end of the week and instructed Elizabeth to edit Will’s memo when he was finished writing it. The Justice also instructed Amanda to write the memo on Will’s behalf if he was too busy to complete it by the deadline. The next morning, when Will woke up, he wasn’t feeling well. In fact, he had a high fever and was terribly achy all over. It turned out he had the flu, so he called in sick for the rest of the week, and let Amanda know that she would need to write the memo for him as the Justice had instructed. But Elizabeth wasn’t sure what she was supposed to do under the circumstances. All she knew was that the Justice had instructed her to edit Will’s memo. Elizabeth had a choice to make. She could edit the memo that Amanda wrote on Will’s behalf–as if it were essentially Will’s memo–or she could take the more literal position that she had only been asked to edit Will’s memo, and since this was clearly a memo written by Amanda, she was not obligated to edit it.
Think about it for a moment. Put yourself in Elizabeth’s shoes and imagine that you have a personal interest in keeping your boss, the Justice, happy. Do you edit Amanda’s memo or not?
This is a loose adaptation of a hypothetical example raised by Justice Kagan during yesterday’s oral arguments in King v. Burwell. It shows up beginning on page 9 of the transcript. The bottom line is that the plaintiff’s argument that the health insurance subsidies should be made available only on exchanges operated by the state is a literal interpretation that would be the equivalent of Elizabeth opting not to edit Amanda’s memo, then, when confronted by Justice Kagan as to why she didn’t edit the memo, proceeding to say “Well, you only told me to edit Will’s memo, not Amanda’s.” To which Justice Kagan would likely respond “I wanted you to edit the memo. I thought you’d be able to figure out that if Will was unable to write the memo and Amanda had to do it for him, I still wanted you to edit the memo. In either case, you should have edited the memo.” That’s basically the government’s position in King v. Burwell. We intended to provide subsidies. We intended to provide subsidies if the states ran the exchanges, and we made a provision for the federal government to run the exchanges if the states failed to do so, but we still intended to provide subsidies. In either case, we intended to provide subsidies. Case closed.