Over at Concurring Opinions, Gerard Magliocca observes a possibly unintended consequence of the Halbig decision, as it pertains to the doctrine of originalism. “Originalism,” of course, being the legal theory popular among certain conservative jurists (e.g. Scalia) that holds that the “original intent” of the drafters of the Constitution should be the primary (or only) consideration when interpreting or applying said document.

Part of the criticism of originalism involves the difficulty/impossibility of applying the views of men who lived in an 18th-century agrarian society to the issues of the 21st century. Defenders of originalism say we can resolve these issues by looking at context, other writings of the Founding Fathers, and so on. Magliocca writes:

Halbig pokes a hole in this argument. At issue is a major provision in the most visible statute passed by Congress in years (if not decades). And we cannot agree what that provision was trying to accomplish just four years after it was enacted. Did Congress use subsidies to give states an incentive to set up health insurance exchanges, or was that not the case? Was there a drafting error, or was this intentional? If that is unknowable, what are we supposed to do with ambiguous constitutional provisions ratified more than two centuries ago?

[Emphasis added.]

Of course, this analysis requires taking supporters of the Halbig decision at their word when they claim that their interpretation of the statute is the result of anything other than cynical exploitation of a poorly-drafted clause. They can patch up any damage they may have caused to originalism by just admitting that they don’t really think the U.S. Congress of 2010 intended something so counterintuitive.