Here’s a Funny Idea: Medicare Laws That Are Easy to Read
Judges Lash Out at ‘Tortuous Text,’ Prepare for New Revisions; a Serbonian Bog
Federal judges across the country have lashed out against poorly-written, ‘tortuous’ Medicare and Medicaid text, Joanna Chung reports on the News Hub. Photo: AP.
James Madison warned in the Federalist Papers about laws “so voluminous that they cannot be read, or so incoherent that they cannot be understood.”
If only he had lived to see the Medicare and Medicaid programs.
“Picture a law written by James Joyce and edited by e.e. cummings,” wrote Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia, in a January ruling in a Medicare case. Last September, Judge Gilbert S. Merritt Jr. of the Sixth Circuit lamented Medicare’s “tortuous text.”
“An aggravated assault on the English language,” is how the Supreme Court characterized the Medicaid statute in a 1981 opinion, quoting a federal judge in New York.
Lots of people have strong feelings about Medicare. But some of the most passionate outbursts have come from judges trying to sort through its language. Now judges are steeling themselves for a new round of revisions, some of the most significant in years, as part of President Barack Obama’s health-care law.
A typical provision of Medicare, for instance, reads like this:
“In the case of a plan for which there are average per capita monthly savings described in section 1395w–24 (b)(3)(C) or 1395w–24 (b)(4)(C) of this title, as the case may be, the amount specified in this subparagraph is the amount of the monthly rebate computed under section 1395w–24 (b)(1)(C)(i) of this title for that plan and year (as reduced by the amount of any credit provided under section 1395w–24 (b)(1)(C)(iv)  of this title).”
Congress passed the Medicare and Medicaid laws in 1965 as amendments to the Social Security Act. The laws span several hundred pages, and additional provisions are scattered elsewhere in the federal code.
The heft isn’t exotic by today’s standards. The Dodd-Frank financial law runs a brisk 2,300 pages. President Obama’s health-care law is more than 900 pages long.
Medicare and Medicaid are just part of a distinguished history of judicial disdain. Other laws have also been criticized for their dense writing.
For decades, sharp tongues on the bench have lashed at the stubborn complexity of the tax code.
Learned Hand, the famous philosopher-judge on the Manhattan-based U.S. Court of Appeals for the Second Circuit, wondered in a 1947 article whether parts of the code “have any significance save that the words are strung together with syntactical correctness.”
Judge Joseph McLaughlin, of the Second Circuit, has compared interpreting the tax code to Theseus’s journey in the labyrinth of the Minotaur “but without his ball of thread.”
Medicare and Medicaid do, however, appear to be among the most put-upon laws in recent history.
A search of court records turned up nearly 100 cases in which judges cited the complaints of other judges or found some new way to express pique at the laws’ complexity.
Maryland’s highest court, for example, said in a 1996 opinion that Medicaid reflected “Congress’s indifference to the simplicity and clarity of the Elizabethan language.”
Connecticut’s Supreme Court once likened the federal and state laws that make up the Medicaid system to a “Serbonian bog”—a reference to John Milton’s “Paradise Lost.”
Judges seem to relish what has become, more or less, an inside joke among colleagues. The Connecticut court acknowledged the “hyperbole” that infuses judges’ criticism of way the laws are written. A federal judge in Ohio, writing in 1995, stated simply: “The complexity of the Social Security Act is the stuff of legend.”
But there is truth to the matter. The late Judge Henry Friendly, another prominent Second Circuit judge, wrote in one oft-cited 1976 opinion a scathing appraisal of the laws. “There should be no such form of reference as ’45 C.F.R. § 248.3(c)(1)(ii)(B)(2),'” he wrote. “…a draftsman who has gotten himself into a position requiring anything like this should make a fresh start.”
Some judges, if not exactly praising of the draftsmanship, say the laws are difficult for good reason.
“They are trying to achieve complex ends. The more fair way to look at it is they have a lot of considerations they try to balance,” says Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit. “You can’t get away from complexity. We live in a complex world.”
Michael McConnell, a former federal appellate judge, says he mainly takes exceptions to the exceptions. “What I find difficult are all the cross-references and exceptions,” says Mr. McConnell, now a professor at Stanford Law School. “I think it’s a sign that Congress is trying to micromanage things.”
On the other end of the spectrum, he says, are laws like the Sherman Antitrust Act, which amounted to two handwritten pages when Congress passed it in 1890, laying the foundation for U.S. antitrust law. “It deals with complex subject matter, but in a single sentence the law authorized the courts to go off” and create a body of interpretations, says Mr. McConnell.
To clarify his own objection to Medicare’s prose, Judge Lamberth included a footnote.
He said that his reference to James Joyce referred not to the author’s early writings, such as the quasi-autobiographical “A Portrait of the Artist as a Young Man,” but rather to his later work—specifically, the stream-of-conscious “Finnegans Wake.” He didn’t say how Medicare compares to “Ulysses.”
Write to Joe Palazzolo at Joe.Palazzolo@wsj.com
A version of this article appeared Mar. 9, 2012, on page A1 in some U.S. editions of The Wall Street Journal, with the headline: Here’s a Funny Idea: Medicare Laws That Are Easy to Read.
Copyright 2012 Dow Jones & Company, Inc. All Rights Reserved