Even if ObamaCare survives Supreme Court scrutiny next spring, its trials will be far from over. That’s because the law has a major glitch that threatens its basic functioning. It’s so problematic, in fact, that the Obama administration is now brazenly trying to rewrite the law without involving Congress.
The Patient Protection and Affordable Care Act offers “premium assistance”—tax credits and subsidies—to households purchasing coverage through new health-insurance exchanges. This assistance was designed to hide a portion of the law’s cost to individuals by reducing the premium hikes that individuals will face after ObamaCare goes into effect in 2014. (If consumers face the law’s full cost, support for repeal will grow.)
The law encourages states to create health-insurance exchanges, but it permits Washington to create them if states decline. So far, only 17 states have passed legislation to create an exchange.
This is where the glitch comes in: ObamaCare authorizes premium assistance in state-run exchanges (Section 1311) but not federal ones (Section 1321). In other words, states that refuse to create an exchange can block much of ObamaCare’s spending and practically force Congress to reopen the law for revisions.
The Obama administration wants to avoid that legislative debacle, so this summer it proposed an IRS rule to offer premium assistance in all exchanges “whether established under section 1311 or 1321.” On Nov. 17 the IRS will hold a public hearing on that proposal. According to a Treasury Department spokeswoman, the administration is “confident” that offering premium assistance where Congress has not authorized it “is consistent with the intent of the law and our ability to interpret and implement it.”
Such confidence is misplaced. The text of the law is perfectly clear. And without congressional authorization, the IRS lacks the power to dispense tax credits or spend money.
What about congressional intent? Law professor Timothy Jost suggests that since ObamaCare requires all exchanges to report information about premium assistance, and it would be silly to impose that requirement on federal exchanges if their enrollees were not eligible, that shows Congress could not have intended anything but to provide assistance in federal exchanges. At least, he argues, there’s enough ambiguity here about Congress’s intent that federal courts will permit the administration to resolve it.
Not so fast. The Supreme Court has increasingly limited such deference to cases where the text of the law—rather than Congress’s intent—is ambiguous. In this case the language of the law is clear, as even Mr. Jost admits.
The health law’s authors in Congress deliberately chose to pass the bill with known imperfections and to use the reconciliation process to make only limited amendments. Writing a perfect bill would have required too many votes and risked failure. If what they passed was an imperfect bill with no premium assistance in federal exchanges, then that is what Congress intended.
While I’m always happy to see this imperial Administration face a well-deserved bitch slap, I’m inclined to comment here less on the particulars of the law and more on the argument of how the law must be interpreted — especially insofar as it revisits previous arguments made here over the role intent plays in hermeneutics.
In this instance, Adler and Cannon are absolutely correct — and their argument tidily beats back ill-informed notions relating to intentionalism that I’ve countered elsewhere and under different (largely hypothetical) circumstances. Legislation is to be written using certain “plain text” conventions, and it is the explicit agreement between legislators and judges to interpret and apply law based on the knowledge of these legal conventions that provides the requisite context for interpretation (which as I’ve shown from a linguistic standpoint is of necessity an appeal to intent, lest it not count as “interpretation” at all).
Here, Jost wants to argue that the law has a clear intent, and the failure to properly signal that intent in the text does not nullify that intent. And this is true, in a sense: I believe him correct in his assertion that lawmakers erred in the way they presented the text, and therefore mis-characterized their own intentions under the plain text conventions of legislative authorship. They meant what they meant, and failure to signal that — whether they intended that or not — doesn’t change the meaning.
But as Adler and Cannon point out, the controlling intent here was to pass the legislation using the reconciliation process. That is, the Democrat Congress, by pushing the legislation in its current form, made clear their intent to have the legislation as written codified in law.
Because legal convention calls for interpretation to proceed from the baseline assumption that the best interpretation is the one most obvious based on plain text readings of the language, any judge would conclude that — if the intent was as Jost describes it, the legislators haven’t made that intent clear in the text of the law, and should therefore go back and rewrite the law to better clarify their intent. Which is to say, a judge won’t be denying that the lawmakers didn’t mean what they say they meant — and therefore, what the law means, from the perspective of intentionalism, doesn’t change — but rather, s/he will be directing them to clarify what they meant (that is, to better signal their intent, as they claim it) so that what they intended is consonant with the marks they produced, marks that in this case have failed to signal that intent in a way that could ever be determined by a neutral observer who has no recourse to studying the legislative history.
And yet, this is precisely what those who support ObamaCare now want to do: avoid having to make their intent clear in a legislative context, because to do so would mean risking a defeat of their legislation now that the balance of power has changed.
Legal interpretation (as with, for example, interpretation of instruction manuals) carries with it an attendant convention: just as we don’t expect an instruction manual to be written ironically, we don’t allow for laws to be interpreted based on hidden intentions. Instead, we require that laws be written in such a way that their legislative intent is a clear as possible.
Leaving out premium assistance in federal exchanges was either intentional or else an oversight, an error that, while it doesn’t change the meaning of the law from the perspective of the legislators, nevertheless requires a rewriting of the law to meet conventional legal standards.
In this case, the double bind for Democratic lawmakers is that to elevate their intended (but poorly signaled) meaning over the implied and controlling intent declared by the passage of the law in its imperfect form (for reasons of political expedience), they will most likely have to rewrite the law to meet conventional standards.
At which point they are likely to be thwarted by an evolution to the context in which they offer their meaning — namely, a change in the voting power Democrats have to push through law in the House.
(thanks to JD and afs)