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Liberal commentators endorse a peculiar method of statutory interpretation to support their claim that Obamacare (“the ACA”) provides for subsidies on both State and Federal Exchanges. They argue that the private intent of specific legislators and even staffers should replace the plain text of the statute. This method of interpretation would prove unworkable and inconsistent with democratic norms.
In one particularly egregious example of this argument, the Washington Post‘s Greg Sargent cites a draft of Obamacare that was passed by a Senate committee but never became law. This unpassed version of the law explicitly authorized subsidies on Federal Exchanges. Sargent claims this version of the law embodies Congress’s “true intent.” He wants courts to ignore the bill that was actually passed and to effectuate the supposed will of Congress.
In order to support his argument, Sargent weaves a tale based on his imagination and quotes from Democratic committee staffers. A handful of staffers told him that Congress never meant to delete the language and, therefore, he concludes that courts should read the language back into the statute. This, of course, just coincidentally happens to favor his preferred result. Courts should universally reject such a subjective and unpredictable method of statutory interpretation.
Where a statute is clear, “judicial inquiry” begins and ends with the text. Court’s find the meaning of statutes in the most obvious of all places, their text. However, the D.C. Circuit notes that, in unusual circumstances, some precedent allows legislative history to challenge a seemingly clear text. According to those precedents, the legislative history “plays a clearly secondary role.” The plain meaning of the text controls absent “the most extraordinary showing of contrary intentions.” Private statements by legislators, staffers, or journalists cannot possibly meet the extraordinarily high burden required to subvert the text of a statute.
Sargent argues that Congress made its intent to provide subsidies on federal exchanges extraordinarily clear by removing the language that authorized such subsidies from the law. No, you did not misread that sentence. Sargent cites private statements of Congressional staffers to establish that Congress intended to do the exact opposite of the thing it actually accomplished. A creative person armed with statements from friendly and cooperative staffers can work unlimited mischief on a text. This is not a reliable tool of statutory construction.
Numerous writers objected to Sargent’s theory, noting that the natural implication of the Senate’s removal of the language is that it did not want the language in the law. How could Congress more persuasively demonstrate that it did not want to allow Federal Exchanges to grant subsidies than by removing language that proposed to allow such subsidies from the law? Sargent infers the opposite conclusion, and demonstrates why his proposed system of statutory interpretation is unworkable. Empowering judges to consider the personal intent of specific individuals would invite those Judges to substitute their personal policy judgments for those enacted by Congress.
Adopting this method of interpretation would make it impossible for the average citizens to understand his legal rights and obligations. Currently, a citizen who wants to understand a law can simply read it. If the text is clear, he knows exactly what the law requires him to do or not to do.
If the commentators’ proposals were adopted that clarity would be replaced with chaos and unpredictability. Instead of merely reading a law to find its meaning, Americans would have to consult congressional staffers to ensure that the law did not have a secret meaning. Any law, no matter how clear on its face, could mean something entirely different. How could anyone ever have confidence that he was complying with the law?
The commentators’ preferred method of statutory interpretation is also undemocratic. The pronouncements of our elected officials are not law, congressmen are our elected representatives not our rulers. The entirety of their power comes from the official duties entrusted to them by the people who elected them.
Congress makes laws through the process laid out in Article 1 of the Constitution. If such a properly enacted law is misunderstood, or leads to unintended consequences, Congress can correct the error by returning to the constitutionally prescribed process. Congress may not amend a law by merely stating that it intended to pass a different law. Such an ability to amend laws without going through the formal legislative process would represent a massive grant of power never envisioned by our constitution. No court should accept Sargent’s seemingly expedient path at the expense of our constitutional safeguards.
The commentators may mistakenly believe that their arguments are relevant at a stage of the litigation other than the examination of the legislative history discussed above. Before delving into the legislative history, the Halbig court examined whether the plaintiffs’ interpretation of the statute would lead to absurd results. The commentators’ arguments are irrelevant to this question, because it simply explores whether a literal interpretation of the subsidies provision created unworkable internal conflicts. The relevant question at this stage in the interpretation is whether congress could have intended such a reading, not whether they actually intended it.
The ACA’s supporters are deeply devoted to ensuring that subsidies are provided on both Federal and State Exchanges. However, they should not make the mistake of focusing so narrowly on their immediate goal that they lose sight of the consequences of their suggestions. A theory of statutory construction that allows statements of journalists, congressmen, or staffers to undermine a statute’s plain text is unworthy of serious consideration.