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America's Future Path: Paved with Laws or Intentions?
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America's Future Path: Paved with Laws or Intentions?

Harold Furchtgott-Roth

It did not take the White House long to react to the announcement that the Supreme Court had decided to review King v. Burwell, a case challenging the Affordable Care Act: “We are confident that the Supreme Court will recognize both the clear reading of the entire law, and the certain intent of Congress in crafting it.”

The administration is asking the Supreme Court to ignore statutory language in favor of the administration’s interpretation of congressional intent.

To see the limitations of the concept of congressional intent, one need only look at the spectacle of MIT economics Professor Jonathan Gruber. Along with the administration and former Democratic congressional staff, Professor Gruber now insists that Congress “intended” to allow federal subsidies to federal health care exchanges, the issue before the court in King v. Burwell.

Over the past week, it has come to the public’s attention that Professor Gruber has in the past few years held the diametrically opposite view about the intentions of Congress. Mr. Gruber changed his mind about congressional intent. So, it seems, can anyone else.

What weight should the Supreme Court give to Professor Gruber or to anyone else who claims to know the intent of Congress? Exactly zero. In court, the opinions of individuals should not trump the words of law.

The issue before the Supreme Court is about simple words in the English language: “an exchange established by the state.” To the plaintiffs, the words mean what they say.

To the administration, the words of the ACA include exchanges established by the federal government, not because the statute says so, but because the administration wants it to be so. It was the Internal Revenue Service in May 2012 that defined an exchange as a “State Exchange, regional Exchange, subsidiary Exchange, and Federally-facilitated Exchange.” New York Times columnist Paul Krugman observes that the original statutes are merely typos. Thus are sown the seeds of anti-democratic thought.

To allow ordinary Americans to read laws and interpret them for their self-evident meaning is one of the hallmarks of our country, which is based on the rule of law. Little gives greater confidence to individuals than being able to read the laws by which they are governed. Those who dislike the written laws are free to elect different representatives to rewrite those laws. We teach our constitution and laws not because they are rendered meaningless by disembodied intentions, but precisely because they have meaning.

Intentions can change with time and administration without congressional approval. Laws, however, cannot be changed without Congress. Despots in all ages never bother with laws because they rule by their intent as implemented by their deputies. Dictators have no use for laws. Democracies do.

Our constitutions at both the federal and state levels speak of “laws” not “intentions.” We speak of “law and order,” not “intention and order.” Individuals are convicted of breaking laws, not intentions. Thousands of Americans have attended “law school,” not “intention school.” Lawyers are supposedly trained in interpreting written laws. They are not trained as psychoanalysts.

It takes a majority of Congress, the good luck of timing, and the stench of side deals and broken promises to pass a law. Lawmaking is not always a pretty process, but at the end is a written law. Those who have worked in the legislative process hold a certain reverence for the written law because we know how difficult it is to pass a law.

The administration is vigorously defending itself in King v. Burwell not merely because the ACA is President Obama’s signature political accomplishment, but also because restricting the administration to the actual clear meaning of statutes would substantially circumscribe the administration’s expansive power of interpreting laws as convenient.

Much of the federal government has for years engaged in a word game related to congressional intent. If an administrative agency can find an ambiguous word or phrase, courts will defer to the agency and allow it to infect the ambiguous words or phrases with any meaning imaginable, as long it does not directly contradict the statute. Ambiguity becomes a necessary accomplice of congressional intent.

The search for ambiguity has been in play since at least 1984, when the Supreme Court in Chevron v. NRDC established a test of whether executive actions are permissible under a statute. If the statutory language is ambiguous, congressional intent is ambiguous and the courts under Chevron defer to agency judgment.

The Solicitor General frequently cites ambiguous words and phrases and concludes that courts must defer under Chevron to the administration’s interpretation of the ACA. Find an ambiguous phrase. Defer to the administration. QED.

Reasonable people can disagree about whether words or phrases are ambiguous, but it is difficult to reconcile with democratic principles the elevation of congressional “intent” above the actual words of statutes. Here are several reasons why.

First, under the Constitution, Congress, and Congress alone, writes laws. The Constitution has no exceptions for ambiguous language, nor does the Constitution elevate congressional intent above the law. Under Chevron, it is the executive, not Congress and not the Courts, that interprets potentially ambiguous statutory language. It is the executive, not Congress, that marches into court after court asking the court to defer to the executive’s discovery and ambiguous language and the executive’s interpretation of congressional intention. It is not a coincidence that Congress has been substantially weakened over the past 30 years that Chevron has been in effect.

Second, anyone who has worked on Capitol Hill knows that congressional intent is elusive. Each member has an individual intent, but collective intent of Congress is rare. It is even rarer that courts will stumble upon actual intent with naïve searches of floor speeches, committee reports, and staff reports. Each member makes individual, not collective, speeches. The president signs the language of a bill into law, not the staff report. Members vote for bills for personal reasons, not because of floor speeches or the language of staff reports.

Indeed, a staff report is probably the clearest indication of exactly what Congress could not have meant. To work on a staff report is often a consolation prize to staff who failed to get specific language in statute. Staff reports are invariably filled with concepts and language that was considered, but excluded, from the statutory language in the bill. They are called “staff reports” because they are written by staff, not members. Naively, many courts look to staff reports for guidance of Congressional intent.

Third, it is ironic that courts allow an executive agency to claim that written statutory language is ambiguous, yet unwritten, self-proclaimed congressional intent known only to the executive is unambiguous. Under Chevron, Congress is deemed incapable of clear thinking and writing whereas the executive is assumed to be vested in such capabilities. In many other organizations, such as a public corporation, ambiguous board resolutions would be referred back to the board for clarification rather than allowing management merely to interpret board resolutions as it sees fit. There is no reason that courts should defer to executive agencies on ambiguous language rather than simply referring the language back to Congress for clarification.

Fourth, the search for congressional intent suggests that Congress consciously writes obscurely, that meaning cannot be found entirely in the written. It is as if Congress writes riddles in statute and separately writes a Rosetta stone to interpret the hieroglyphics that only the executive can read. Intentionally obscure writing may characterize some intellectual writing, as noted by Arthur Melzer in Philosophy Between the Lines, but it cannot plausibly underlie statutory writing.

Fifth, claiming to have discovered congressional “intent” and claiming that congressional statutory language is ambiguous are irrefutable positions for the executive. Members of Congress cannot run to court every time a federal agency misinterprets its bills. Nor can former members rush to court to defend views misinterpreted by the executive. The views of Congress at all times are divided, and Congress cannot refute third parties such as the administration that claim to know exactly what Congress intended.

Sixth, the elevation above statutory language of congressional “intent” as interpreted by the executive means that the executive has no need for new statutes. The executive has all of the statutory authority, and deference from courts, in existing laws. Chevron and other cases give the executive extraordinary powers that require little if any additional authority from Congress.

Seventh, the elevation of congressional “intent” above statutory language discourages Congress from writing new laws, and from writing unambiguous laws should it decide to write a law in any event. When courts defer to administrative agencies, Congress—particularly those members skeptical of the latitude of administrative agencies—has little incentive to write new laws, which simply give administrative agencies more power.

King v. Burwell is more than just a dispute over the ACA. It touches on the very foundation of our democratic government. Are we a nation of laws or intentions? The pathway paved with laws leads to a better future than the pathway paved with intentions, no matter how good.

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