WASHINGTON -- It’s difficult to think of when so much has ever ridden on the interpretation of just six words. But that’s how things stand in the twisted, tortured legal challenge to the Affordable Care Act now before the Supreme Court.
On Wednesday, the court will hear oral arguments on the legality of the individual tax credits awarded under the law. Critics of Obamacare argue that the language of the legislation restricts those subsidies to people who purchase coverage on state-run exchanges. Defenders of Obamacare think that is bunk. Only a ridiculously narrow reading of the law would lead to such a conclusion, they insist.
With millions of people at risk of losing subsidies in about two-thirds of states, an enormous focus has been placed on one critical passage in the Affordable Care Act. Lawyers have pored over it. Lawmakers have fought bitterly about it. Reporters have devoted countless words, and judges have considered pages and pages of briefs. Just what exactly are the meaning and intention of the bold phrase in this passage, which is defining the size of the subsidy:
"... the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act ..."
To help us find an answer to this question, The Huffington Post asked one group of professionals who have stayed largely outside the debate but who might have some helpful insight.
Linguists aren’t necessarily the most legally savvy or politically attuned, but they understand the purpose of language. And several of them said that the government has a good case in King v. Burwell -- not because of what the Affordable Care Act says but precisely because of what it doesn’t.
“The law presupposes that each State establishes an Exchange. If the State does, the taxpayer receives a federal tax credit for the premium that the taxpayer pays for a plan purchased through the Exchange,” said UCLA professor Richard Anderson via email. “But if the State has not established an Exchange, the law doesn’t say anything about whether the taxpayer receives a tax credit; the law only speaks to the case where the State has established the exchange. The Federal government isn’t obligated by the wording of the law to offer the tax credit, but it isn’t forbidden to either. Meanwhile equal protection probably does obligate the Federal government to offer the tax credit in all states.”
A political science professor who focuses on linguistics, Anderson compared the debate over Obamacare subsidies to a famous philosophical example of how language works. Consider this sentence: “The King of France is not bald.” It is neither true nor false because the presupposition -- that there is a king of France -- is not true. The sentence, therefore, stands for nothing.
Under Obamacare, Anderson said, the presupposition is that the state has established an exchange. But in the absence of a state-established exchange (i.e., where the exchange is run by the federal government), he argued, the subsidy clause stands for nothing.
“From a linguistic point of view it would be possible to read the passage as imposing no restriction. Somebody else might read it some other way, but there is no reason to prefer one reading to the other,” said Anderson. “If the legislators had wanted to restrict the tax credit to premiums for those plans in which the taxpayer had enrolled through an Exchange established by the State, they could have written 'only' somewhere: for example, instead of 'and': 'but only when the taxpayer enrolled in the plan through an Exchange established by the State.'"
Eve V. Clark, a professor of linguistics at Stanford University, agreed with Anderson’s analysis. The Affordable Care Act doesn’t explicitly say that “only” state exchanges can issue subsidies, nor does it explicitly say that subsidies will be awarded in federally run exchanges. With that ambiguity, she noted, it becomes a question of what the law, more broadly and elsewhere, intended and whether “one can force the Federal Government to be discriminatory” by denying tax credits to certain states and individuals.
“For states that did not set up state exchanges, residents always had the option of getting affordable health care from the federal exchange,” said Clark. “And I’d assume that any benefits from the state exchange would automatically be carried over to the federal exchange. So then the issue becomes one of whether one can force the Federal Government to discriminate against those people who had no state option here. But to do so would clearly violate equal protection, something that is supposedly enshrined in federal law.”
George Lakoff, a cognitive linguistics professor at the University of California, Berkeley, also supported Anderson’s argument. But he geared his own observation more toward the plaintiffs' purpose in their reading of the law. A Democratic Party adviser and admitted progressive, Lakoff cited Grice's Maxim of Relevance to make his point.
According to the late British language philosopher H. Paul Grice, irrelevance is a hallmark of uncooperative discourse. Things are stated that may be factually true but aren't really relevant to what the other speaker said. For example, a motorist runs out of gas at night and flags a passerby to ask if there is a gas station near. The passerby replies, "There is a gas station around the corner," while knowing that the gas station is closed.
“He has said something true, but irrelevant to the concern of the motorist, and hence uncooperative,” said Lakoff.
The professor then pivoted to King v. Burwell: “The plaintiffs in this case are engaging in uncooperative discourse, since they disagree with the intent of the legislation and want to attack or overturn it.”
CORRECTION: A previous version of this article misstated George Lakoff's name.
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