Here’s a fun little statutory interpretation question. The Affordable Care Act says that tax credits and subsidies are available when one enrolls in a health plan “through an Exchange established by the State under Section 1311.” A “State” is defined as “each of the 50 States and the District of Columbia.” Section 1311 is a provision that allows exchanges to be set up by states.
If one enrolls in a health plan through an exchange established by the federal government, they would not appear to be enrolled in a health plan “through an Exchange established by the State under Section 1311.” And thus, one is not eligible for a subsidy.
This is really happening — and it could be the death knell for ObamaCare subsidies, because most states didn’t bother to set up exchanges.
So, we have two competing schools of interpretation. One is: the language means what it means. You look at the language as it is reasonably understood by people reading it when it is passed. Nobody reading the word “State,” defined as “each of the 50 States and the District of Columbia,” would interpret it as “each of the 50 States and the District of Columbia and also the federal government under certain circumstances.”
But then we have another school of interpretation that says it doesn’t really so much matter what the law says — we have to look to what the lawmakers really meant. And there, it gets messy. Democrats will say: “Well, of course we meant for the subsidies to apply to policies bought on the federal exchange.” Jonathan Adler has long argued the contrary position: that the subsidies were intended to provide an incentive for the states to set up their own exchanges. Applying this theory of legal interpretation, some judge would have to wade through all the possible motivations Congressmen might have had for writing what they wrote, and decide between Adler’s view and the Dems’ view.
But you don’t even get to this argument unless you concede the proposition that what Congress “intended” can trump the plain language of what it actually wrote. I have criticized this position in the past. The only way you can have a rule of law is to interpret laws according to their objective reasonable meaning as understood at the time the law is written.
You can see the two schools of interpretation at work in the description of the argument of this case in the D.C. Circuit:
“If the legislation is just stupid, I don’t see that it’s up to the court to save it,” Judge A. Raymond Randolph said during oral arguments in March.
Randolph, a George H.W. Bush appointee, said the text of the statute “seems perfectly clear on its face” that the subsidies are confined to state-run exchanges. Carter-appointed Judge Harry T. Edwards slammed the challengers’ claims as “preposterous.” So the deciding vote appears to be with George W. Bush-appointed Judge Thomas B. Griffith, who wasn’t resolute but sounded unconvinced of the Obama administration’s defense, saying it had a “special burden” to show that the language “doesn’t mean what it appears to mean.”
Whether ObamaCare lives or dies will likely depend — for now — on one judge’s view of his role. Does he follow the law as written? Or does he ignore the plain language of the law to try to ascertain some subjective meaning that Congress might have intended to express?
Of course, this will all eventually be headed to the Supreme Court, where Anthony Kennedy and Justice Roberts will end up grappling with the same question. I don’t hold out much hope for Kennedy on this issue.