In Robert Bolt’s great play, A Man for All Seasons, Thomas More’s daughter confronts him with the ominous news that Parliament has mandated an oath of allegiance to the king. This oath will probably include some reference to the king as head of the Church, which More knows he could not truthfully affirm. Seeking a way out, he asks about the wording of the oath. Daughter Margaret replies that the wording is irrelevant because “we know what it will mean.” More, ever the lawyer’s lawyer, replies: “It will mean what the words say.”
Defenders of the Affordable Care Act would do well to ponder More’s words as they contemplate the latest, potentially very damaging, legal challenge to the law. This challenge, unlike earlier and more famous ones, does not rely on the Constitution but on the language of the law itself. It seeks not to get the law declared unconstitutional, but instead to contain its operation by holding the government to the actual wording of the law.
The law seeks to herd many Americans into government-created “exchanges” in which they can purchase health insurance. To keep the insurance affordable, the law also provides for federal subsidies to individual purchasers. Here arises the problem. The wording of the law makes such subsidies available for consumers who have purchased health insurance in an exchange established by “the State.” Some states, however, have not established the exchanges as the federal government expected them to. Confronted with this difficulty, the Obama administration went ahead and created its own. The difficulty with the administration’s improvised damage control, however, is that that the wording of the statute clearly limits the subsidies to purchasers in state-established exchanges. Implement the Affordable Care Act according to its terms, and significant numbers of Americans will be denied subsidies that the administration promised them without statutory authorization.
Moreover, under the law, the subsidies in question trigger the individual and employer mandates that were designed to induce substantial numbers of uninsured Americans to enter the insurance market. If the subsidies are not authorized in the states that did not create exchanges, then the mandates cannot apply in those states, either. Thus, if this interpretation prevails, millions of Americans will be able to escape the system the law seeks to create, which will in turn seriously undermine the economic viability of the system.
The ultimate fate of this legal challenge is at present unclear. The argument upon which it is based has been affirmed recently by the US Court of Appeals for the District of Columbia Circuit, although it was rejected almost simultaneously in another case heard by the Fourth Circuit. This sets up a good chance that it will find its way to the Supreme Court in the coming year. Scenting danger, defenders of the law have taken to arguing vigorously—even desperately—that, regardless of the law’s wording, Congress intended to make the subsidies available to everyone. Ignoring Thomas More’s admonition, they insist that they can know what the law means quite apart from, and even in opposition to, its words.
No doubt, they will be untroubled by disregarding the views of a man who died five hundred years ago. They should be aware, however, that their argument for legislative “intent” apart from the words of the law also casts aside a venerable tradition in American law, one extending all the way back to the American founding.
The Spirit and the Letter
Writing in the 1819 case Sturges v. Crowninshield, Chief Justice John Marshall rejected the arguments of those who claimed that the Contract Clause should be interpreted more narrowly than its words imported. The proponents of this argument, like today’s Obamacare defenders, appealed from the document’s actual words to an intention they claimed could easily be derived from the history of the drafting of the document. Marshall responded:
although the spirit of an instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words. It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation.
Like the litigants Marshall confronted, the critics of the DC Circuit Court ruling want the law to operate differently from the way that its words “expressly provide.” Of course, Marshall was dealing with the Constitution, while the present argument concerns a statute. Nevertheless, Marshall frames his rule broadly; it is not restricted to constitutional interpretation but applies to all legal “instruments.” Here, Marshall wrote not just for himself, and not just for a majority of the Supreme Court, but for a unanimous Supreme Court—a Court that included both Federalist and Jeffersonian appointees. It is fair to say that Marshall’s preference for the words of the law over appeals to extra-textual sources of intention represented the legal opinion of the founding generation.
If the administration’s partisans demand more evidence in support of this principle, we might point them to Alexander Hamilton. Writing in defense of the constitutionality of the first Bank of the United States, Hamilton contended that the federal government’s authority to erect a corporation was implied by the text of the Constitution. In the course of his argument, he had to deal with Thomas Jefferson’s claim that it was clear that the Constitution did not delegate such a power implicitly because its framers had considered including an express power to erect corporations but ultimately had decided to omit it. Such arguments, Hamilton contended, could say “nothing in respect to the real merits of the question.” Although he was keenly aware that laws often “express and effect more or less than was intended,” he insisted that legal interpretation must be based on text, not on the alleged intentions of the authors.
This is not merely an appeal to authority. Recourse to intentions apart from words is to be rejected not just because it is contrary to the informed legal opinion of the founding generation. Rather, such a mode of interpretation was rejected by the founders and should be rejected by us because it is, to borrow Marshall’s words, “dangerous in the extreme.” What, then, is the danger?
Relying on Intention Threatens the Rule of Law
The approach insisted upon so vehemently by the administration’s defenders threatens nothing less than the rule of law itself. This becomes clear if we attend to Hamilton’s explanation of why it would be useless to reason on the basis of the Constitutional Convention’s decision to omit a clause that would authorize the federal government to create corporations. We can know that this provision was rejected, Hamilton contended, but we cannot know exactly why. Some members may have voted against it because, like Jefferson, they thought the federal government could not be entrusted with such a power. Others, however, may have voted against it because they thought, like Hamilton, that the power was so obviously implied that there was no reason to include an express provision for it. And other members may have voted as they did for other, unknown reasons. The record of debate on the question was incomplete, and therefore it provided no data on which one could reason with confidence.
The rule of law requires predictability, a predictability arising from intelligible courses of reasoning. Such predictability and intelligibility, as Hamilton suggested, can be achieved only on the basis of an examination of the words of a law in light of the established methods of interpretation. It cannot arise from competing speculations about what the authors of the law “really intended” apart from the words they use.
The problem that Marshall and Hamilton recognized is always with us. This ought to be clear even to the Obama administration’s current defenders. Legislators usually do not say much about their intention other than what is actually in the law. To be sure, extensive debate takes place during the legislative process, but it is rarely if ever so extensive as to remove all doubt about legislative intention. Most members of the legislature are not on the committees that draft a given piece of legislation. Most of them offer no amendments to it when it comes to the floor for a vote. Many of them may not even speak on the issue but just cast their votes as they think best. And those who do make speeches may confine themselves to broad policy considerations without addressing the specific questions that could arise in relation to contested provisions.
What is true in general is true in spades of the Affordable Care Act: are the current devotees of legislative intent forgetting that many members of Congress who voted for it admitted that they had not even read it? There can be no truly impartial, legal reasoning on the basis of such materials. The administration’s defenders must surely know this, although they are temporarily forgetting it because of their passion to defend what they think is a landmark law in the progress of social justice.