Underlying the various arguments that the Supreme Court should uphold the IRS’s ignoring the plain language of the Affordable Care Act (“established by the state,” etc.) is that the Court should defer to what Obamacare defenders maintain as the “obvious” intent of Congress — that all who qualify for subsidies should receive them, no matter who created the Exchange through which they purchased.
A first cousin, maybe even a joined at the hip twin, of this demand for deference to Congressional intent is the Chevron doctrine. As Richard Epstein explains succinctly here, the four liberal justices who were determined to inject ambiguity into the straightforward legislative language did so “in order to take advantage of the so-called Chevron doctrine, dating from 1984, which holds that in those cases where the text is not clear, the courts must give deference to the agency’s interpretation of the statute. In oral argument, Justice Scalia, who is one of Chevron’s champions, held that it did not apply because the statute was clear on its face no matter how much the government regretted the outcome.”
A common-sense solution to the current problem (and one that Epstein, among others, favors) is for the Court to strike down the IRS’s overreach and let Congress sort out the debris of coming up with something that would protect those who bought on the Exchanges expecting in good fait to receive subsidies. Indeed, what better way of relying on Congressional intent than relying on Congress to clean up the mess it made?
But no, the Obama administration and other Obamacare defenders react to this suggestion in horror. Why? Because “this Congress,” as Solicitor General Verrilli superciliously referred to it in oral argument, would not pass the same sort of legislation that the Obamacare-passing Congress passed. In other words, they demand that the Court defer to their version of Congressional intent … lest Congress be enabled to express its intent more clearly.
ADDENDUM
Josh Blackman shows how the Obamacare defenders’ newfound appreciation of federalism and states rights is as fair weather as their devotion to Congressional intent, as do Randy Barnett and Ilya Somin.
