Has President Obama overstepped his authority in his efforts to sidestep revisiting the Affordable Care Act? The courts will no doubt rule on this, and probably multiple times. For various reasons, including the policy’s abiding unpopularity, several provisions have been postponed beyond the date et in the act. Is that a legitimate use of executive authority? Supporters claim it is for the executive to execute the laws. But, surely, only within the leeway that the law provides? The executive branch may legitimately decide whether to employ 20 people or 40 people to work on implementation of this or that provision, but it may not construe a clause which states a certain provision will come into effect in 2014 as only applying from 2015. Postponing unpopular policies until after the election is not faithfully executing the law.
What, then, of a provision which specifies subsidies for insurance policies purchased on an exchange “established by a state”? Can that be construed as including the exchange established by the federal government? This seems a remarkable stretch of the language. To apply such subsidies to exchanges established by the District of Columbia or the Commonwealth or Puerto Rico would seem reasonable. Those governments exercise similar powers to those exercised by the states – and indeed to the commonwealths of Virginia, Massachusetts and Pennsylvania. But the federal government is plainly a different tier altogether.
Democrats are claiming that the inclusion of the words “established by a state” was a mistake and contrary to the intent of Congress. One supporter even called it a “typo”. But the intent of Congress is hard to discern. The 535 individuals may have had different things in mind when they voted. We know that few, if any, of them had read the legislation. Speaker Pelosi claimed it was necessary to pass the legislation to find out what is in it. There was certainly no intent by a majority in Congress to provide funds for abortifacient drugs, since a promise that no such funds would be provided was an express condition necessary to secure a majority in the House. Democrats were rather less keen on looking at the intent of Congress when that issue was before the courts.
Courts certainly have the power to consider either the intent of Congress or the precise words and be guided by either. It makes sense, however, to be guided by the text of the law, unless such guidance leads to nonsense. That is what supporters of the president are now claiming: there is no plausible reason why Congress might have intended to exclude the federal exchange from subsidies. Except that there is, and it was being advocated by supporters of the ACA as recently as 2012. The purpose was to incentivize states to establish exchanges.
When the British Parliament made it a criminal offence to get married when already married the plain intent was to prohibit bigamy. A clever lawyer argued that his client had not breached the law because his second marriage was legally void: he had tried to get married, but had not succeeded. The courts ignored the text and were guided by intent.
Where the text does not lead to such a logical nonsense – a criminal sanction for an act that is literally impossible – it is safer to be guided by the text, and the ACA does not subsidize the federal exchange.
Quentin Langley is a Senior Lecturer in Marketing at the University of Bedfordshire Business School as well as a freelance columnist published in the UK and all parts of the US. He blogs on social media and crisis communications at brandjacknews.com
Filed under: U.S. Politics
