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I’ve searched the internet (and Twitter, in particular) for a reasoned argument against the Halbig decision. I keep seeing one word: intent. I’d argue that intent isn’t important in this case because the wording in the law is clear: subsidies only apply to “exchanges established by the State.” Left-leaning pundits seem to believe words in the law shouldn’t mean what they say and courts should uphold extralegal actions of the IRS to bail out sloppy legislators.
Does text matter?
Suppose Congress debates passage of a bill taxing all interstate trade. In the end, the majority of lawmakers say that all trade will be taxed at 18% except hipster glasses, which will be taxed at 25%. The bill that passes, for whatever reason, only contains the line “all trade will be taxed at 18%” and leaves out any mention of nerdy eyewear.
Under what authority could the IRS tax hipster glasses at 25%, rather than the statutory 18%?
How far can intent take you?
During the debates leading up to the passage of Obamacare, the President and many members of Congress repeated on dozens, if not hundreds, of occasions some variation of a pledge that people would see their premiums decrease with the passage of Obamacare. The promise of lower premiums never made it into the law, but it would be easy to argue that this was the lawmakers’ intent. That decrease has turned out not to be the case as rates have increased and look to go up even more in the coming years.
As the stated intent was to decrease premiums, does the IRS have the authority to increase subsidies enough to lower all premiums?
Where does it end?
Giving bureaucrats the ability to divine powers not explicitly stated in the law sets a dangerous precedent. Those arguing to look to intent even when the law’s text is clear are putting us all on a slippery slope. The left should ask themselves what would happen if a future GOP President decides that the intent of subsidizing green energy was to lower people’s power bills: could he then use an increase in electricity premiums to justify unilaterally ending green subsidies?
The possible abuses of the power the left wants to grant the IRS in this case are limited only by your imagination. However, there is a mechanism in place to resolve issues like these, be they a “typo” or not. Congress can pass a new bill correcting the previous bill. I understand why the left would prefer an extralegal reading of the law to be enforced, given the fact that they already lost one round of elections over Obamacare and its popularity is lower than ever. But is the left willing to open the Pandora’s Box to follow?
I welcome comments below or you can reach me through my twitter handle, @AmeriChad.