King v. Burwell: Intentionalism Trumps Textualism, and the Rule of Law Dies
I’ve not had a chance, due to work constraints, to say much about the King v. Burwell travesty. I’ll just note (if I may toot my own horn for a moment) my warnings five years ago about the dangers of looking to an impossible-to-determine “intent” of a collection of legislators.
In one of those posts, I posited a hypothetical that I think most of you will recognize as eerily prescient: a hypothetical that the legislators who passed ObamaCare intended to legislate a form of coverage that they in fact failed to put in the law:
ObamaCare does not prevent insurance companies from denying coverage to children based on their pre-existing conditions. But (here is the hypothetical) what if every legislator who voted to pass ObamaCare actually intended to prevent insurance companies from denying coverage to children based on pre-existing conditions? (Again, it is a core assumption of the hypothetical that this was indeed the legislators’ intent. It is not a post hoc argument they are making; your working assumption is that they actually did intend to include this concept in the law.)
I noted that if one were foolish enough to apply an “intentionalist” reading of laws, rather than a “textualist” reading, one could simply have judges write protections for children into the law, in accordance with legislative intent. After all, who really thinks Congress wanted to leave children suffering from pre-existing conditions at the mercy of the insurance companies? But this takes the rule of law and throws it right out the window — because it is not fair to require the citizenry to obey secret, unexpressed intentions that they were never told about. Thus, only the text, and the text alone, is the law. That is the only way the rule of law works. As I said in 2010: “How can it be workable to make citizens hostage to legislative intent that cannot be divined from the text of the law by a reasonable audience?”
That hypothetical, decried by some as unrealistic, turned out to be a pretty close parallel to the King v. Burwell case.
I know some readers are convinced that Congress intended to include the words “established by the state” as an expression of federalism. The idea here is that the states were encouraged to establish their own exchanges by a carrot/stick approach. The argument goes that Congress was telling state officials: establish an exchange, and you get the subsidies (the carrot). Refuse to establish an exchange, and your citizenry gets nothing — and you face the wrath of the voters (the stick).
There is much disagreement about this on both sides. The conservatives point to Jonathan Gruber, a central ObamaCare drafter. The lefties note that Gruber was elected by nobody, and they point to a complete absence of any reliable evidence by an actual legislator saying that they wanted to use subsidies to coerce the states. (The famous Baucus statement is pretty ambiguous, even according to Michael Cannon, not to mention the fact that Baucus admitted he didn’t even read the bill.) Frankly, I don’t think the winning position in this murky debate is very clear. Whatever the origin of the “established by the state” language, I think the best explanation of its retention in the final bill is that the legislators foolishly assumed every state would set up an exchange. They guessed . . . poorly.
My own personal opinion is that allowing one’s self to be dragged into the muck of a messy debate about intent misses the point. My view is that arguing about legislative intent is a fool’s errand, because as I said way back in 2010, there really is no such thing as legislative intent:
[L]egislation cannot be interpreted according to legislative intent because, even in theory, it is often impossible to ascribe a single intent to a set of words that is the product of numerous different intentions. If 60 people vote for a provision, and 30 intend it to mean one thing, and the other 30 intend for it to mean the precise opposite, there is no coherent way to determine a single “intent” behind the text.
To those who argue that Congress really intended to include the words “established by the state” to enforce federalism, my question is: what if it were clear that was not Congress’s intent? What if every CongressCreature, upon voting for SCOTUSCare — whoops, I mean ObamaCare — signed an affidavit saying: “Our intent is for subsidies to be available to any citizen regardless of whether they obtained their plan on an exchange established by a state or by the HHS Secretary”? (Understand that the Constitution gives no legal authority to such affidavits; they would just be a road map to learning the legislators’ intent.) Assume further that the legislation that they actually passed said, just like it does today, that subsidies are available for those who obtain their insurance on exchanges “established by the state.”
Would you really feel any different? Really?
This reminds me of a hypothetical I offered in 2010:
Assume you make $50,000 a year. The legislature passes a law imposing a hefty tax on “people making over $100,000 per year.” Since the law does not apply to you, by its plain terms, you do not pay the tax. However, you are convicted after a judge finds irrefutable contemporaneous evidence showing that all legislators who voted for the tax intended to impose it on people making over $10,000 a year. The judge, an “intentionalist,” finds that the intent of the legislature controls, regardless of the plain meaning of the law.
Under the plain language of the law, the tax does not apply to you. Applying the intent of the legislators, it does. Which is the better interpretation?
My view was that the law would not apply to you, because “$100,000” means “$100,000.” Legislators can say all day long that they meant to say $10,000 — but if they didn’t include that extra zero in the law that was duly passed and signed, the text simply means what it means.
To me, $100,000 means $100,000 — not $10,000. To me, this is as simple as saying “established by the state” means “established by the state” and not “established by the state or the Secretary of Health and Human Services.” You don’t need to get into the legislators’ heads — and it is foolish and indeed dangerous to even try to do so.
But then, I am not an elite lawyer who went to Harvard or Yale and then went on to serve on the Supreme Court of the United States. And I am certainly not an “intentionalist.” I do not ascribe to statutory language mysterious secret meanings that signify the opposite of the common understanding of the public.
I am a simple man. To me, the law means what it says. Nothing more and nothing less.
Don’t say I didn’t warn you. I did. Again and again.
UPDATE: Thanks to Ed Driscoll at Instapundit for the link! I hope new readers (or old occasional readers) will bookmark the main page and remember to come back.
