Goes to the question of "plain" meaning of the ACA cases.
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What today’s Obamacare rulings really tell us
By Greg Sargent
July 22 at 2:36 PM
Only hours after Obamacare opponents celebrated the D.C Circuit Court’s decision invalidating subsidies to those the federal exchange, the Fourth Circuit Court has now weighed in with precisely the opposite decision, upholding the IRS rule extending those subsidies.
That was a short party wasn’t it? Now the story is no longer “crushing blow” — the first decision would have invalidated subsidies in three dozen states, taking subsidies from millions — but “split decision.”
The law’s opponents like to say they merely want to enforce the law “as written.” Their basic presumption is that their argument is grounded in a “literal” reading of the Affordable Care Act, and that any departure from that literal reading — one that seeks to divine the meaning of statutory language by looking at the intent of Congress in passing a law — is less pure in legal terms.
But this elides an inconvenient fact: Courts have, in fact, frequently looked at the intent of Congress in passing laws when they have decided that a “literal reading” does not actually settle the dispute in question.
This particular dispute, then, turns on whether you think a “literal reading” of the disputed phrase in the Affordable Care Act definitively settles the question of whether the statute makes subsidies available to those on the federal exchanges.
Law professor Nicholas Bagley has previously written skeptically about the legality of the employer mandate, and his views have been widely cited by the law’s foes. But Bagley tells me in an interview that in this case, he does not think that a “literal reading” of the phrase settles the key question here — which means the court should properly evaluate the intent of Congress, as reflected in the whole statute, in settling it.
The text of the law says subsidies go to those who get insurance through an “exchange established by the state.” Opponents say that means an IRS rule providing subsides to those on the federal exchange is invalid.
The D.C. Circuit ruling siding with opponents dismisses the argument that Congress’ overall goal overrides that one phrase, claiming the government “comes up short in its efforts to overcome the statutory intent. Its appeals to the ACA’s broad aims do not demonstrate that Congress manifestly meant something other than what [that phrase] says.”
But the problem with that construction is its premise: That the phrase “says” something clear. That presumes that the phrase itself settles the core question at the heart of these legal challenges. To believe that, you have to believe that the literal meaning of the phrase is that subsidies should only goes to those on state exchanges, and not on the federal one. But the phrase does not literally say that subsidies should not go to people who get subsidies from the federal exchange, which under the law must be established in states that decline to set up their own exchanges. In fairness, opponents are right — the phrase also does not literally say that subsidies should go to those on the federal exchange.
But all of that is precisely what makes the statutory language in question ambiguous.
Once you accept this point — that the meaning of the phrase is not clear — then there is ample precedent for the courts evaluating the intent of Congress as expressed in the whole statute. |
