Obamacare: Text and Intention

I have a piece at Public Discourse on the debate over the recent legal challenge to the Affordable Care Act.  This challenge is not constitutional in its nature, but is instead based on the wording of the statute.  The challenge holds that some subsidies the administration is paying out are not really authorized by the law.  The wording used calls for subsidies to purchasers in exchanges established by “the State,” while the administration has also been paying them to purchasers in the federal exchanges.

This argument has gotten some traction in the appellate courts, having been affirmed by one and rejected by another.  This has led defenders of the administration to contend that it must be obvious that, regardless of the wording of the statute, Congress must have intended that the subsidies be available to purchasers even in non-state exchanges.

This argument involves a difficult and interesting question: how is the intention of the law to be known?  This is the question I try to address in the essay, pointing out that there is a venerable tradition in American law holding that the intention of a law is to be grasped chiefly on the basis of the words used, and not on the basis of suppositions about what Congress intended, based on the political debate surrounding the law.

Here’s the Great Chief Justice, John Marshall, on the question:

Although the spirit of an instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words. It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation.

And, as I go on to argue, Marshall had good reasons for holding this view:

The rule of law requires predictability, a predictability arising from intelligible courses of reasoning. Such predictability and intelligibility . . . can be achieved only on the basis of an examination of the words of a law in light of the established methods of interpretation. It cannot arise from competing speculations about what the authors of the law “really intended” apart from the words they use.

[This] problem . . .  is always with us. This ought to be clear even to the Obama administration’s current defenders. Legislators usually do not say much about their intention other than what is actually in the law. To be sure, extensive debate takes place during the legislative process, but it is rarely if ever so extensive as to remove all doubt about legislative intention. Most members of the legislature are not on the committees that draft a given piece of legislation. Most of them offer no amendments to it when it comes to the floor for a vote. Many of them may not even speak on the issue but just cast their votes as they think best. And those who do make speeches may confine themselves to broad policy considerations without addressing the specific questions that could arise in relation to contested provisions.

What is true in general is true in spades of the Affordable Care Act: are the current devotees of legislative intent forgetting that many members of Congress who voted for it admitted that they had not even read it? There can be no truly impartial, legal reasoning on the basis of such materials. The administration’s defenders must surely know this, although they are temporarily forgetting it because of their passion to defend what they think is a landmark law in the progress of social justice.

Read the whole thing here.