Administrative law judges threaten the separation of powers, yet the alternatives available for changing the law are fraught with dangers.
In Halbig v. Sebelius–a case that considers whether the Obamacare exchanges operated by the federal government can provide subsidies–seven members of Congress submitted an amicus brief telling the D.C. Circuit what the law really means. Senators Baucus, Harkin, and Reid, and Representatives Levin (MI), Miller (CA), Pelosi (CA), and Waxman (CA) insist that congress never intended to limit subsidies to state-run exchanges.
Amici are members of Congress who led the enactment of the Patient Protection and Affordable Care Act and members of state legislatures who served during the period when their governments were de- ciding whether to create their own Health Benefit Exchanges (“Exchanges”) under the Act. Thus, amici are particularly well-suited to provide the Court with back- ground on the text, structure, and history of the statute and the manner in which it was intended to operate. Indeed, because amici include both members of Congress and state legislatures, amici have unique knowledge on an issue at the core of this case: whether the purpose of the statute’s provision for tax credits and subsidies was to induce states to set up their own Health Benefit Exchanges, under penalty of withdrawal of those credits and subsidies if States chose to allow the federal gov- ernment to operate Exchanges in their stead.
In the past, I have been very skeptical, and quite critical of the value of a brief submitted by members of Congress to courts to explain what a statute they passed means (see here, here, and here for comments concerning efforts by Senators McCain, Graham, and Ayotte to intervene in Hedges v. Obama, which considered the constitutionality of the NDAA, and also here). In short, the legislative power granted in Article I stops at bicameralism and presentment. A law should be judged based on what is in the law (and, if necessary legislative history and other contemporaneous statements). I find it bordering on opportunistic for members of Congress and the Senate to submit post-enactment self-serving arguments to a court, and expect a court to give it any more weight than a run-of-the mill amicus. This doubt is heightened when the constitutionality of a law turns on a pivotal phrase in the law. Does anyone think that those submitting a brief will view the law in a way other than constitutional.
These concerns are amplified by a factor of a million when talking about Obamacare, for several reasons particular to the passage of this bill. First, I am almost positive that not a single signatory of this brief actually read the key provision at issue in Halbig, amidst the 3,000 page bill. Second, even if any Senators had read it, at the time they expected it to be fixed during reconciliation. I doubt any of the members of the Senate thought it significant enough to fix prior to the pivotal December 24, 2009 vote. But of course, in light of the Scott Brown election, and the House having to pass the law without the benefit of any meaningful reconciliation process, this fix was out the window. Third, even if any of the signatories read this provision, and were aware of the drafting error, I am positive none considered the possibility that the law could have been ultra vires. And, don’t forget that Nancy Pelosi replied “Are you serious?” when someone asked what the constitutional authority was for the mandate. Pelosi is estopped from commenting on the constitutionality of the ACA.
The argument focuses broadly on the purpose of the law, and how the members of Congress viewed that purpose.
Based on their experiences, amici know that the core purpose of the ACA is to achieve universal health care coverage and that the provision of tax credits and subsidies to low- and middle-income Ameri- cans is indispensable to achieving that purpose.
Even more strange, the Amici fault the challengers for relying on the text of the statute to impute an intent to Congress!
Because the textual basis for this argument is so weak (Appellants isolate a four-word phrase in one provision rather than considering the statute as a whole), they impute to Congress—in effect, to congressional amici themselves—the purpose of having structured the statute so that tax credits would be available only on state-run Exchanges, as a means of encouraging States to set up their own Exchanges. This objective, they claim, was so important that it over- rode Congress’s core purpose of broadening access to health insurance.
Imagine that, relying on the text of a statute to figure out what Congress meant. Who needs to rely on text when the authors of a law can submit a brief to the court telling them what they really meant.
This brief reminds me of efforts by Congress in United States v. Lopez to change the legislative history of the Gun-Free School Zone Act–after it was struck down by the 5th Circuit on 9/14/93–to add a jurisdictional hook of how it has a substantial effect on interstate commerce. On September 13, 1994, President Clinton During oral arguments in Lopez, the Solicitor General conceded that “[n]either the statute nor [the Gun Free School Zone Act of 1990’s] legislative history contain[s] express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone.”
Chief Justice Rehnquist dismissed the relevance of this post-enactment history, by a different Congress, through the signature of a different President.
We note that on September 13, 1994, President Clinton signed into law the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. 103–322, 108 Stat. 1796. Section 320904 of that Act, id., at 2125, amends § 922(q) to include congressional findings regarding the effects of firearm possession in and around schools upon interstate and foreign commerce. The Government does not rely upon these subsequent findings as a substitute for the absence of findings in the first instance. Tr. of Oral Arg. 25 (“[W]e’re not relying on them in the strict sense of the word, but we think that at a very minimum they indicate that reasons can be identified for why Congress wanted to regulate this particular activity”).
Such post-enactment history should be irrelevant.
At least a modified statute would have the benefit of bicameralism and presentment. Unlike a self-serving brief signed by 6 members of Congress.
Cross-Posted at JoshBlackman.com.