In his Op-Ed, “Death by Typo,” Paul Krugman ridicules “the latest frivolous attack on Obamacare,” King v. Burwell. Krugman begins his missive by relaying a story from his childhood about a mistaken deed that was corrected by a town clerk.
My parents used to own a small house with a large backyard, in which my mother cultivated a beautiful garden. At some point, however — I don’t remember why — my father looked at the official deed defining their property, and received a shock. According to the text, the Krugman lot wasn’t a rough rectangle; it was a triangle more than a hundred feet long but only around a yard wide at the base.
On examination, it was clear what had happened: Whoever wrote down the lot’s description had somehow skipped a clause. And of course the town clerk fixed the language. After all, it would have been ludicrous and cruel to take away most of my parents’ property on the basis of sloppy drafting, when the drafters’ intention was perfectly clear.
This story is either not true, or involved a huge mistake of law (I’m leaning towards the former). In property law, boundaries are measured by metes and bounds. If your deed is incorrect, you cannot simply get the “town clerk” to “fix the language.” It means you do not own the land you are on. You have a few possible remedies. If you’ve lived there long enough, you may be able to state a claim for adverse possession, but in most jurisdictions (at that time), a mistaken belief that you owned the land would be insufficient to establish a claim of right. If that doesn’t work, you would have to purchase the land from the true owners (all land must be owned by someone). If they would not sell, then you’re screwed. Property law, which focuses very strictly on the text of a deed, can be very “cruel” and unforgiving even with “sloppy drafting” or where the “intentions” are “perfectly clear.”
Mistakes are enforced by courts. That’s why you everyone should purchase title insurance. But that would only permit you to recover the purchase price, and not the land.
So this is the exact opposite example of what Krugman would want to use to illustrate why King is “frivolous.” If courts applied property doctrine to the construction of statutes, this case would be over in 5 seconds. The government loses. Statutory interpretation is much more complicated than understanding deeds.
In any event, Krugman bungles statutory interpretation too.
But if you look at the specific language authorizing those subsidies, it could be taken — by an incredibly hostile reader — to say that they’re available only to Americans using state-run exchanges, not to those using the federal exchanges.
The text is so, so plain. The “specific language authorizing those subsidies” can be read in one way, and one way only. The subsidies are only available in states that establish exchanges. Only an “incredibly hostile reader,” like Krugman, could view this provision otherwise. Now, of course, there are other reasons why the statute as a whole could be ready differently–Nick Bagley has articulated this position well. But it serves no purpose to be as disingenuous as Krugman to make such a ridiculous claim.