by Jon N. Hall 12/28/18
On December 14, U.S. District Court Judge Reed O’Connor ruled that Obamacare is unconstitutional. Although it’s seems unlikely that the ruling will result in the demise of the ACA, this writer was curious about its treatment of ambiguity. Other than two iterations in footnote quotations, words that contain “ambig,” such as in “unambiguous,” occur three times in the text of O’Connor’s ruling, on pages 37, 41, and 51:
Applying these standards, the Court finds the 2010 Congress expressed through plain text an unambiguous intent that the Individual Mandate not be severed from the ACA. …
On the unambiguous enacted text alone, the Court finds the Individual Mandate is inseverable from the Act to which it is essential.28 …
Based on unambiguous text, Supreme Court guidance, and historical context, the Court finds “it is evident that the Legislature would not have enacted” the ACA “independently of” the Individual Mandate.
Judge O’Connor may think that Congress’ clarion clarity on severability makes Obamacare unconstitutional, but it was precisely the law’s alleged lack of clarity, i.e. its ambiguity, that allowed the Fourth Circuit to save Obamacare in King v. Burwell. Had the Supreme Court then found the language in question to be unambiguous, they should have found the ACA unconstitutional. If it seems wacky that a law could be upheld because of its ambiguity, its lack of clarity, then thank a doctrine in American jurisprudence called the “Chevron deference.”
In June of 2015, just after the ruling in King v. Burwell, the Washington Post ran “On Obamacare, John Roberts helps overthrow the Constitution” by George Will. Some readers may be down on Mr. Will due to his anti-Trumpism, but they should put that aside and read this 2015 article. Will wrote that the Chief Justice created a corollary to Chevron deference, dubbing it the “Roberts Doctrine.”
Named for a 1984 case, Chevron deference has become central to the way today’s regulatory state functions. It says that agencies charged with administering statutes are entitled to deference when they interpret ambiguous statutory language. While purporting to not apply Chevron, Roberts expands it to empower all of the executive branch to ignore or rewrite congressional language that is not at all ambiguous but is inconvenient for the smooth operation of something Congress created. …
The Roberts Doctrine facilitates what has been for a century progressivism’s central objective, the overthrow of the Constitution’s architecture.
A recent case that the Supreme Court has agreed to review could have far more momentous implications than the King ruling. The case is Kisor v. Wilkie and it also concerns the practice of granting deference to administrative agencies, the issue in King. But whereas King dealt with ambiguity in legislation, Kisor deals with ambiguity in agency rules and regulations. King rested on the Chevron deference, and Kisor is testing the lesser known Auer deference.
On December 11, the day after the Supreme Court granted Kisor certiorari, National Review ran “The Boring Supreme Court Case That Could Help Make America Great Again” by David French, who writes this about Auer deference:
It’s the Little Satan that works with the Great Satan — Chevron deference — to fuel the explosive growth in the power of executive-branch agencies. …
Auer builds on the Chevron framework by requiring courts to defer to the agency when even its own regulation is ambiguous. The result is a regime of deference upon deference that gives regulatory agencies enormous authority to craft and then interpret their own regulations.
This deference permits executive-branch agencies to expand their constitutional role and essentially combine all three constitutional functions under a single bureaucratic tent. It’s the lawmaker as it drafts regulations, the judge as it interprets its own laws, and the executive as it enforces the laws that it has drafted and interpreted. Deference supercharges the executive branch. It’s a cornerstone of the imperial presidency and the root of much modern presidential authoritarianism.
Mr. French is referring to the “administrative state.” There’s a study focusing on such un-American regimes at Ballotpedia, the Administrative State Project, and it features a useful little entry on Kisor. On March 11, the Volokh Conspiracy at Reason ran “What Do Judges Think of Chevron?” by Jonathan Adler, who reports on a survey of federal judges and what they think of Chevron. Adler opines that Auer deference “should definitely be abandoned.” Adler begins his article by noting Justice Gorsuch’s disdain for Chevron. Recently, American Thinker ran an article about Justice Kavanaugh’s skeptical position on Chevron. (Given Roberts’s rulings, I’d say we need an additional conservative on SCOTUS.)
“Ambiguity” itself is a problematic concept. In fact, in the entry for “Ambiguity” at the Stanford Encyclopedia of Philosophy, Adam Sennet writes: “Fun fact: the word ‘ambiguous’, at least according to the Oxford English Dictionary, is ambiguous between two main types of meaning: uncertainty or dubiousness on the one hand and a sign bearing multiple meanings on the other.” Sennet then informs that his entry deals only with the second type of ambiguity, language that supports multiple interpretations, i.e. the equivocal. As for the first type, we could also describe it as vague, indefinite, and unclear.
I mention the ambiguity in “ambiguity” because some folks seem to see ambiguity everywhere. Linguists can tie themselves in knots trying to make the unambiguous ambiguous, but then fail to see ambiguity when it’s apparent.
It’s odd that ambiguity has been given such a central role in American case law and jurisprudence. If ambiguity can save a law, then why can’t incoherence? The courts could say: Well, this law is incoherent; therefore we must defer to the agencies and let them interpret it however they please. How is that any more pathetic than what’s been going on in courtrooms since 1984?
If a law is ambiguous or incoherent or self-contradicting or in any way illogical, then what the courts should do is strike it down. Congress could then rewrite the misbegotten mess, (right after they hire a logician).
American conservatives look at the European Union and are aghast that entire nations have ceded power and self-determination over to unelected bureaucrats in Belgium; it’s why we cheered the Leave side in Brexit. But we allow the same sort of thing here when unelected judges “defer” to unelected bureaucrats.
Ambiguity empowers the “administrative state,” and it does so by means of the Chevron and Auer doctrines. If one had to choose between knocking down Obamacare on one hand, or knocking down the Chevron and Auer doctrines on the other, I say choose the latter alternative.
May you have an unambiguously Happy New Year!
Jon N. Hall of Ultracon Opinion is a programmer/analyst from Kansas City. • (121 views)