Saturday, February 7, 2015

King v. Burwell and the Separation of Powers

     On February 5 the New York Times published an op-ed by Linda Greenhouse, a leading commentator on the Supreme Court, entitled The Supreme Court at Stake: Overturning Obamacare Would Change the Nature of the Supreme Court. Greenhouse argues that King v. Burwell, the Affordable Care Act case currently pending in the Supreme Court, involves far more than mere questions of statutory construction and contends that the case has political and constitutional implications that put the Supreme Court itself in peril. I agree, and would add that if the Supreme Court eliminates billions of dollars of tax credits that Congress and the Internal Revenue Service intended to extend to American citizens that it would violate the doctrine of Separation of Powers.

     King v. Burwell is the case in which the Supreme Court will interpret the meaning and legal effect of a key component of the Affordable Care Act. Four citizens of Virginia contend that they are not entitled to federal tax credits to purchase health insurance because their State did not set up an independent exchange, instead relying on the federal government to set up an exchange for it. The Supreme Court will decide whether the Affordable Care Act requires the government to provide federal subsidies in the form of tax credits for low- and moderate-income families who purchase health insurance in every state, or whether it only permits the government to provide credits to families who live in states that set up their own exchanges.

     Even though this is a case of statutory construction, it has important implications for the principle of separation of powers. This case will turn in part upon whether the Supreme Court looks only to the text of the law or whether it gives appropriate consideration to the intent of Congress. And it will turn in part upon the willingness of the Court to defer to administrative agencies charged with the duty of interpreting and enforcing federal law. Will the Supreme Court accord proper deference to the legislative and executive branches of government, or will it trample on the constitutional prerogatives of those co-equal branches?

     There are five types of legal arguments - five types of authority that can be invoked in any dispute regarding the meaning of the law. These are the text of the law, the intent of the people who adopted the law, judicial precedent interpreting the law, the traditional behavior of people who are subject to the law and who are attempting to comply with it, and whether a proposed interpretation of the law would be consistent or inconsistent with the underlying purposes and policies that the law is supposed to serve. Text, intent, precedent, tradition, and policy.

     Not all types of legal arguments are created equal. In different fields of law different types of legal arguments predominate. In cases of statutory construction one particular type of argument is regarded as transcending all the others -- "intent." The touchstone, the polestar of statutory construction is "legislative intent." All of the other types of legal arguments should be marshaled to prove what the intent of the legislature was.

     Why should this be the case? In other fields of law text or precedent or tradition or policy arguments may predominate. Why should cases of statutory construction be any different?

     It is because the legislature represents the will of the people. Statutes are the voice of the people speaking through their elected representatives, and the courts are bound to obey that voice. The foundation of our law - the cornerstone of our entire civilization - is the principle of popular sovereignty - that all "just powers" of government are derived "from the consent of the governed." If the courts substitute their judgment of what a statute means for what was meant by the legislature, it violates the principle of popular sovereignty and oversteps the role of the courts in our system of government.

     While the text of the Affordable Care Act might be ambiguous, there is no doubt whatsoever about the intent of the law. The hundreds of members of Congress who drafted, supported, and opposed the law; the dozens of congressional committees that described and summarized the law; the many federal agencies that analyzed the likely impact of the law; the numerous and powerful industry groups and advocacy organizations that lobbied for and against the law; and the thousands of politicians, journalists, academics, and other citizens who commented on the law, all believed that the Affordable Care Act would help citizens in every state across America to purchase health insurance. Their intent is simply an historical fact. And clear intent trumps ambiguous text.

     Furthermore, even if the Supreme Court finds that the statute as a whole is ambiguous - even if it finds that there is a "tie" between text and intent and it refuses to break that tie - it must rule against the persons challenging the legality of the federal subsidies in Virginia because of the deference that owed to the Executive Branch. This case constitutes a challenge not only to a statute but to a regulation -- a regulation promulgated by the Internal Revenue Service in its enforcement of the Affordable Care Act. It is a fundamental principle of Administrative Law that administrative agencies have lawful authority to interpret the laws that they are charged with enforcing. This doctrine is known as the "Chevron Doctrine," after the case of Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 867 (1984). The Chevron Doctrine represents another aspect of the Separation of Powers. If the Executive Branch is charged with interpreting and applying the law, the courts must defer to any "reasonable" interpretation that the Executive has reached.

     In this case the I.R.S. determined that federal subsidies for health insurance in the form of tax credits are payable to citizens in every state whether their state is served by an independent state health insurance exchange or an exchange set up for the state by the federal government. The Fourth Circuit Court of Appeals properly deferred to the Executive Branch and ruled that this was a "reasonable" interpretation of the federal statute.

     For the Supreme Court to reverse the decision of the Fourth Circuit it would have to find either that the Affordable Care clearly and unambiguously prohibits the issuance of federal tax credits to pay for health insurance in states whose exchanges are operated by the federal government; or that the Internal Revenue Service lacks authority to determine whether tax credits are payable to persons in those states; or that the determination of the I.R.S. was an "unreasonable" interpretation of the statute -- that a fair and rational person could not possibly interpret the Affordable Care Act to mean what its supporters and opponents thought it meant at the time of its adoption.

     Any of these rulings would overstep the powers of Judicial Branch and would constitute a violation of the doctrine of Separation of Powers.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law and is the author of the book "The Five Types of Legal Arguments."

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