Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
Liberal Commentators Unserious and Undemocratic Response to Halbig
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.
Published in General
And then the high priestess threw the chicken bones on to the mat and divined that the ACA actually said “federal single payer.”
EJ,
Actually, if you read every 543rd letter of the bill it yields Barach Obama’s golf scores for the last 5 years and then shows a pixel by pixel diagram of all of Nancy Pelosi’s plastic surgeries. OK OK and then it says “Federal Single Payer”.
Regards,
Jim
James, at least your proposed method of interpretation involves looking at the text. In that sense its still preferable to the proposals from the likes of Sargent and Cohn.
Howie,
Sargent and Cohn are busy texting at Lalapelosi. They can’t be disturbed. They are disturbed but they can’t be disturbed.
Meanwhile, Tom Marino should demand that Pelosi be checked for rabies before she’s allowed back in the House chamber. What a bi(COC violation)ch.
Regards,
Jim
Orwell was right, it just took a little longer than he predicted.
I recall that the bill passed by fairly slim majorities in both Houses of Congress. Presumably, senators and representatives were voting on a specific bill, which of course (hah!) they read carefully. So if , say, the authors of the bill claim “drafting mistake,” wouldn’t one want to require that every senator and representative who voted in favor (or, at least a majority of each House) agree that they thought they were voting on the as-now-to-be-revised text? I’m not advocating such an ex post adjustment rule. But don’t those who argue for such a rule need (at least) to pass this test?
I guess a counter argument would be that since no one had time to read the full text, no senator or representative knew what they were voting on. “We have to pass the bill to learn what’s in it,” becomes “After we pass the bill, we’ll figure out what we hoped was in it, and do that.”
Of course, the obvious answer would be that Congress has had 4 years to fix their “drafting mistake.” If Congress disagrees with how the courts interpret the language of the law, Congress can clarify the language itself.
To the “liberal” a feature, not a bug. I’m afraid the idea of law written so the average person knows what the law requires went out of fashion at least a couple of decades ago. Keep the proletariat always on edge by denying them certainty about what the law is, so that they become more compliant with the whims and dictats of the aristocratic ruling class (the bureaucrats).
Racist.
Let’s not kid anyone. The drafters did intend to have subsidies. But they took the language out because they were trying to coerce states into setting up exchanges, and they passed the law without the subsidy scheme, deliberately. That’s the law that was passed.
What they’re saying is that they couldn’t get an agreement with that language in, so they kept the language out. Now, after the agreement, they want to add it back in as if it had been there all along. They want to unilaterally change the agreement after the fact. You can’t do that.
This, once again, reveals the attitude of the Obama-Reid-Pelosi Democrats. No sooner did they pass Obamacare than they started changing it. They regard Obamacare, not as a specific plan that we agreed to, but as a general grant of power to themselves to be applied however they want. They said whatever they had to say to obtain the power, and now they feel entitled to exercise the power however they want.
These are children who think power is their personal toy.
This is just one more example of the left’s policy of re-interpreting plain language to mean the polar opposite of the actual written words. The second amendment doesn’t actually mean the citizens have the right to keep and bear arms, it means only government does. The tenth amendment does not mean powers not specifically granted to the federal government belong to the states, or the people, but instead means any power the congress votes itself belongs to the fed. The commerce clause doesn’t regulate interstate commerce, it allows the federal government to regulate trade of all types within a state, and even how a farmer uses his own crop on his own farm.
What is notable about this is that suddenly the left wants their claim of ‘original intent’ to override the plain language of the statute, even when they deny original intent when used to confirm language that is thought ambiguous.
Simply put, the law means what we say it means, and if we want it to mean something different tomorrow, it means something different tomorrow.
In other words, not a constitutional republic, but tyranny.
Sargent is really out there on this. I have been following this carefully, trying to sort out what legal meaning, if any, various people’s stories about how ACA might have evolved. The language of the law is plain. We start with that.
The counter argument is the one that needs to be supported since it bears the weight of proof that the law doesn’t say what it says. Gruber’s comments aren’t the slam dunk people think they are. There is apparently video of Baucus, who was in charge, saying the intent was for the subsidies to be available on the Fed exchanges. Depending on the timing of the video that may or may not hold water.
The latest and best is the discussion between the judges in Halbig wherein one judge asked who cared whether the subsidies come on the Federal or state exchanges. Apparently Ben Nelson had a very clear conversation with Harry Reid on this and it is on the record. Nelson wasn’t going to agree to Federal government control of healthcare and insisted that subsidies come only from the state exchanges. I found this to be the most compelling.