Professor Erin C. Fuse Brown’s Orwellian defense of a counter-textual interpretation of the Affordable Care Act (ACA) regarding eligibility for federal tax subsidies would...
Rep. Jason Spencer

Rep. Jason Spencer

Professor Erin C. Fuse Brown’s Orwellian defense of a counter-textual interpretation of the Affordable Care Act (ACA) regarding eligibility for federal tax subsidies would invite an epidemic of lawlessness throughout the Executive Branch. She would torture the word “State” to include “federal government” to promote health care policies she champions. But nothing good has ever come from her “the ends justify the means” attitude towards statutory interpretation.

Robert Bolt’s “A Man for All Seasons” said it all in this exchange between Roper and Sir Thomas More:

Roper: So now you’d give the devil the benefit of law?

More: Yes. What would you do? Cut a great road through the law to get after the devil?

Roper: I’d cut down every law in England to do that.

More: Oh, and when the last law was down, and the devil turned on you, where would you hide, Roper, all the laws being flat? This country is planted thick with laws from coast to coast, man’s laws not God’s, and if you cut them down — and you’re just the man to do it — do you really think that you could stand upright in the winds that would blow then? Yes, I’d give the devil the benefit of the law, for my own safety’s sake.


No ambiguity

The case of King v. Burwell pending in the U.S. Supreme Court is not complex. Congress stipulated in the ACA that federal tax subsidies would be limited to individuals who purchased health insurance through an “[e]xchange established by the State.” There is no more ambiguity in the word “State” than there is in the meaning of the word “is.”

In more than 220 years of legislating, Congress has never treated “State” as synonymous with “federal government.” Indeed, the distinction between the two is the foundation of our system of federalism celebrated in the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Decisions of the Supreme Court embracing the “plain meaning” doctrine of statutory construction overflow like the Nile. Words should be interpreted according to their ordinary meaning in common parlance unless the result would be absurd.

There is nothing absurd or quixotic about confining federal tax subsidies to health insurance purchased over exchanges established by States. It encourages them to establish exchanges to relieve the federal government of the burden of stepping into the breach. Thus, Jonathan Gruber, a prominent advocate for the ACA, elaborated, “if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits.” He further amplified that, “if your governor doesn’t set up an exchange, you’re losing hundreds of millions of dollars of tax credits to be delivered to your citizens.”

‘Intellectually untidy’

Ms. Fuse Brown argues that interpreting “State” according to its plain meaning would undercut other provisions of the ACA. But she is hoisted on her own petard. To interpret “State” to include “federal government” as she urges would render the congressional policy of encouraging States to establish their own exchanges meaningless.

Congress routinely enacts legislation that is intellectually untidy because of sloth or otherwise. The ACA is but one example. Then House Speaker Nancy Pelosi (D-Calif.) confessed “we have to pass the bill so that you can find out what is in it.” It is not the business of the U.S. Supreme Court to force intellectual tidiness on a statute like the ACA, as befuddling as a Jackson Pollock painting.

Professor Fuse Brown correctly observes that Chevron v. National Resources Defense Council calls for judicial deference to agency interpretations of ambiguous statutory terms it is entrusted with enforcing. The Internal Revenue Service, an echo chamber of President Barack Obama, has predictably interpreted the term “State” in the ACA to include the federal government. But that zaniness should command no deference under Chevron because there is no ambiguity in the word “State.” Deference in these circumstances would do violence to the Constitution’s separation of powers by authorizing unelected partisan bureaucrats to usurp the legislative function of Congress.

Professor Fuse Brown would have the Supreme Court play the role of Platonic Guardians to save Congress from ineptitude or blunders. But the Founding Fathers endorsed self-government, not Plato’s Republic. If Congress believes it erred in the ACA in confining federal tax subsidies to health insurance purchased over State exchanges, it can amend the law to include exchanges operated by the federal government. Ms. Fuse Brown scorns that constitutional approach because she knows the Republican-controlled 114th Congress disagrees with her health policy preferences. But her remedy under our democratic dispensation is to work towards electing a Congress that will enact her views into law, not to vandalize the Constitution.

Antidote to ACA

Finally, the professor’s doomsday vision of Georgia without federal tax subsidies is overwrought. A lapse in the individual or employer health insurance mandate under the ACA in Georgia would mean that less expensive and more efficient health care would emerge through free-market incentives and options like Christian Health Care Ministries (CHCM), where the individual is empowered to make decisions without the threat of stiff fines imposed by the ACA.

CHCM is a perfect free-market antidote to the prohibitive cost of the ACA. The ACA is sending health care premiums soaring with or without federal tax subsidies, and a different approach is urgently needed for all Georgians.

If the ACA is so affordable, then why do the costs need vast federal subsidies?

Georgians can afford free-market prices. They cannot afford a lawless Executive Branch.


State Rep. Jason Spencer represents District 180, which includes Camden, Charlton, and Ware counties. Rep. Spencer is the author of the Georgia Health Care Freedom Act that was introduced as House Bill 707 during the 2014 Legislative Session, but was ultimately passed by amending House Bill 943. The Georgia Health Care Freedom Act prohibits the state of Georgia from creating a health insurance exchange.

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