The Affordable Care Act and the rule of law - again

The rule of law is popular in theory, but a hard sell in practice. It tends to get in the way of what "we" want to do and requires that all sorts of procedures be followed before people can be legally bound or the public's money can be spent. It can be hard, under those circumstances, to "get things done."

Thus we have President Obama's impatience with Congress. It would be easier for him to get what he wants if he could just do it himself. I've often felt the same way.

But the thing is that the rule of law - the insistence upon following the law as it has been written and respecting the proper procedures for changing it  - is what separates citizens from subjects. You may like what President Obama does outside the law withe respect to, say, health care or immigration. But just remember that the power you cede to him may one day be exercised by a President Paul Ryan or Marco Rubio. Maybe even Rick Perry or Scott Walker. There are no permanent victories in politics.

So what of last week's decisions about the availability of subsidies in states that have not established insurance exchanges under the Affordable Care Act.  There are three things to keep in mind.

First, the language in the ACA that restrict payments of subsidies to policies purchased on "exchanges established by a state" is not readily dismissed as a typo or grammar error. No one forgot to change the number of a section or make uniform a change in terminology. If it was a mistake, it was an egregious one - the kind that no competent lawyer who was paying attention ought to make.

It's simple English. If I allow for exchanges to be established 1) by a state or 2) by  the federal government and then provide for subsidies only for exchanges established by a state, then the subsidies don't apply to exchanges established by someone else.

The Milwaukee Journal Sentinel's editorial board suggests that "established by a state" can mean "established for a state." Not in English.

Second, the editorial board regards the "intent"of Congress as obvious. "Of course," it opines, Congress did not "really" mean to exempt the residents of 36 states from "the benefit" of tax credits (credits, incidentally, that can impose penalties on state employers and which cost real money) just because those states did not establish an exchange.

One might answer that they must have been what Congress "really" intended this because it is what Congress "really" did. But there is another problem with the board's reading of the legislative history of the relevant legal provisions as self -evidently clear.

Neither of last week's decision agreed with the board on this.

That's right. Neither the DC Circuit or Fourth Circuit majorities thought that the legislative history established that Congress intended that tax credits be available for federal exchanges. Even the Fourth Circuit found that the evidence of Congressional intent was inconclusive.

It is easy to imagine that Congress wanted something else. Indeed, one of the current enthusiasms among lawyers and scholars on the legal left is "cooperative federalism." It is, in fact, quite common that federal largesse is made contingent on states setting up a program or adopting a particular policy. While there is certainly an argument that this should not be done with a law like the ACA (assuming one wants like a law like the ACA), there are also arguments that it should.

In fact, there seems to have been two versions of the ACA originally drafted in the Senate. One provided for subsidies in federal exchanges and the other did not. The two were merged and the language of the latter survived. Normal principles of statutory construction say that a legislative body could not have intended to adopt language that it rejected.

Third, the board's conclusion that the "purpose" of the law should trump what it says ought to scare you. We are governed by the rule of law and not persons. We are, as I wrote earlier, citizens and not subjects. Perhaps Congress never believed that states would not set up exchanges. Maybe, as some evidence suggests, they understood that some may not do so and wanted to use the tax credits as an incentive.

Either view is consistent with the "purpose" of the law. Adopting some broad and unqualified purpose -  to "increase" coverage" - is to beg the question. In enacting the ACA, Congress did not authorize the President to change the law as long as it increased coverage. It passed a law that it thought would increase coverage in a particular way. Just what that way entails is best discerned by reading the law that they wrote.

Cross posted at Purple Wisconsin