Will Ambiguity Save ObamaCare?
Laws in these United States need to be unambiguous. But in one of the most problematic pieces of legislation ever foisted on the American people, the issue may well be whether Congress can be unambiguous for even five words.
In the recent ObamaCare case of Halbig v. Burwell, ambiguity was front and center. The PDF of the ruling shows 28 uses of “ambiguous” and its various forms, including negative forms, such as “unambiguously.” There were 9 uses in the majority opinion, and 19 uses in the dissent.
The majority opinion held that ObamaCare is unambiguous in restricting federal subsidies to those policies purchased through exchanges established by the state. The dissent held that: “The majority opinion ignores the obvious ambiguity in the statute and claims to rest on plain meaning where there is none to be found.” Nonetheless, on page 50 of the PDF the dissent admitted:
In the end, the question for this court is whether § 36B unambiguously operates as a condition limiting the tax subsidies that Congress understood were a necessary part of a functioning insurance market to only those States that created their own exchange. The phrase “Exchange established by the State,” standing alone, suggests the affirmative.
Despite that admission, the dissent thinks the majority opinion is “narrow,” “simplistic,” “out-of-context,” and “wrong.”
Halbig is just one of four cases challenging the IRS ruling that subsidies can be awarded to policyholders who purchase insurance through exchanges established by the federal government. The latest decision in one of those three other cases, King v. Burwell, was delivered the very day, July* 22, as was Halbig’s. However, that other court came down on the other side of the issue, ruling unanimously that the IRS could continue granting subsidies as they have been since Jan. 1.
The ruling opinion in King shows 21 instances of “ambiguous” and its various forms. What’s interesting is that both the King ruling and the Halbig dissent depend upon the law (that they are trying to salvage) being ambiguous.
Both Halbig and King invoke the doctrine known as “Chevron deference.” This doctrine, regarded as “one of the most important principals in administrative law,” came out of a 6-0 ruling written by Justice Stevens in 1984. There are five uses of “ambiguous” and its variants in the text of the Chevron case, and the uses that figure in the doctrine are here:
When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. [Emphasis added.]
In Halbig the word “Chevron” appears 5 times in the ruling opinion, and 14 times in the dissent. In King “Chevron” appears 26 times in the ruling opinion, and twice in the concurring opinion. So Chevron and its doctrine were invoked mainly by those trying to save ObamaCare with its alleged ambiguity.
One would think that the better tactic for those wishing to uphold ObamaCare would be to argue that the law is unambiguous and that the correct reading is the reading that they are advancing. That happens to be the tack taken in the concurring opinion in King (page 38 of the PDF):
I am pleased to join in full the majority’s holding… But I am also persuaded that, even if one takes the view that the Act is not ambiguous in the manner and for the reasons described, the necessary outcome of this case is precisely the same. That is, I would hold that Congress has mandated in the Act that the IRS provide tax credits to all consumers regardless of whether the Exchange on which they purchased their health insurance coverage is a creature of the state or the federal bureaucracy. Accordingly, at Chevron Step One, the IRS Rule… is the correct interpretation of the Act and is required as a matter of law. [Emphasis added.]
This concurring opinion is trying to have it both ways: the verdict is the same regardless of whether ObamaCare is ambiguous or not. But the concurring opinion in King can’t be ignored; it is a backup argument. And in NFIB v. Sebelius, it was the backup argument that won the day: “Second, the Government argues that if the commerce power does not support the mandate, we should nonetheless uphold it as an exercise of Congress’s power to tax [PDF-page 21].” The Supreme Court then “read” the penalty as a tax and the mandate as a choice. (Talk about ambiguity.)
But does the author of the concurring opinion really understand ambiguity? For on page 40 we read: “‘[E]stablished by the State’ indeed means established by the state -- except when it does not.” (Sounds like ambiguity to me.) And on page 42 he casts doubt on the appellants’ position by putting “literal reading” in scare quotes, after which: “In fact, Appellants’ reading is not literal; it’s cramped.”
Can’t a reading be both cramped and literal? Doubt about the judge’s grasp of literality can also be formed by his story about ordering pizza (p. 42-3). If his friend had returned with a Hawaiian pizza from Domino’s, that, too, would have complied with his order. And that’s because his order was so poorly constructed and incomplete; it’s almost as though it had been drafted by Congress. If the judge hates Hawaiian pizza, as all purists do, his order should be more specific. (I’ve included the pizza story to show what case law is coming to in America.)
Rather than giving deference to certain doctrines that have emerged out of case law, like the “Chevron deference,” perhaps our courts could start giving a little deference to the Constitution. Certainly no more deference should be given to Congress: Congress let’s unelected outsiders write their laws for them which they then fail to read. And after the targeting of conservative groups, Lois Lerner, and the missing emails, Americans are in no mood to give any deference to the IRS.
The five words in question are unambiguous. So the question before the court should be if there is anything in the rest of the Act that would qualify or nullify that unambiguous language. If there is, then the condition of ObamaCare is not one of ambiguity, but of incoherence. Just as it did for ambiguity, has case law produced a “doctrine” to accommodate incoherence?
Both Halbig and King deal with a central feature of ObamaCare: government subsidies, which are one of the Act’s main means of financing. If the Act is so carelessly written that there is any question about how that financing works, it should be struck down. ObamaCare is an intrusion into one-sixth of the U.S. economy, and yet, four years on and we’re still debating its financing.
If Congress is putting out ambiguous laws, they should stop it, otherwise, ambiguity will rule. But that may be the objective. If all laws were ambiguous, then with the Chevron doctrine the executive branch could do as it wants all the time. Already, we have Democrats in Congress perfectly content to let the president “rewrite” laws.
ObamaCare was signed into law in March of 2010. Later that year, the American people in a historic election overwhelmingly returned control of the U.S. House to the Republicans. It’s time for the Supreme Court to give a little deference to the American people; they don’t like this law, and have said so unambiguously.
(NOTE: For more on the four cases challenging the IRS ruling, I recommend the articles of Michael Cannon at the Cato Institute. To learn more about the Chevron doctrine, read this paper from the Congressional Research Service. And if the ambiguous has not yet made you bilious, read this.)
Jon N. Hall is a programmer/analyst from Kansas City.