The Rule of Law and Original Sin

On March 4, 2015, the Supreme Court of the United States heard oral arguments in King v. Burwell, the case  that will determine whether subsidies provided for under the Affordable Care Act will be available to plans purchased on the federal health care exchange. The outcome of the case could have sweeping consequences for people who relied on federal-exchange funded subsidies to pay their healthcare premiums under the ACA. Aside from the pragmatic implications on everyday citizens, the underlying issue in this case illuminates a much deeper problem in the way our country (and culture) relates to the “the law.”
Some background information on the main issue in the case will help us understand what is going on. When Congress passed the Affordable Care Act, there was a section in the law that provided subsidies (in the form of tax credits) to qualifying individuals who purchased plans through a healthcare exchange established by their state. The language of the law provided that premium assistance would be available to certain individuals if they were covered under a health insurance plan for each “coverage month.” The law then defines “coverage month,” with respect to an applicable taxpayer, as any month if “as of the first day of such month the taxpayer…is covered by a qualified health plan…that was enrolled in through an Exchange established by the State under section 1311 of the ACA.” 26 U.S.C. § 36B(c)(2)(A)(i).
In other words, a qualifying taxpayer has to meet a series of conditions before they are eligible to receive subsidies. One of those conditions is that they be enrolled in a qualifying plan at the beginning of the month in which they seek assistance. The second condition to receiving assistance is that the person must be enrolled in a health plan through a state-established Exchange. It’s in the very definition of “coverage month.”
As the state and federal healthcare exchanges were created (i.e.,, the IRS bore the responsibility of determining when and to whom premium assistance was available. In spite of the textual limitations of § 36B, the IRS interpreted that provision to authorize tax credits also for individuals who purchased health insurance through the federal exchange rather than the state exchanges. This highly politicized legal battle ensued. If the federal government’s interpretation is incorrect (that the ACA authorized subsidies for plans purchased on the federal exchange), then potentially millions of people will be “on the hook” to repay the IRS for premium subsidies wrongly credited to them.
So, the legal questions remain: does § 36B of the ACA authorize the IRS to provide tax subsidies to individuals who purchase health insurance through the federal exchange? And if it doesn’t, who has the authority to re-write the law? Does that rest with Congress, or can the Supreme Court re-write laws?
Although the legal questions in this case may seem technical and unimportant, the implications—and even the very existence of this case—reveal something true about our legal culture and about human nature. The legal questions, on its face, are easy. The statute requires that subsidies be made available only to people who purchased insurance through their state exchange. The subsidies were meant to act as an incentive for states to participate in the Affordable Care Act. The language of the statute is clear and unambiguous, and when such is the case, there is a long legal precedent of following the plain text of a statute. Moreover, only Congress has the authority to change the law. The Supreme Court cannot, by it’s founding charter (the Constitution) re-write poorly worded statutes.
Then why is this case before the highest court in the Unites States? Because culturally (and politically), the clear meaning of the statute’s text stands in the way of something that many people want: the subsidies. It is the age-old conundrum of wanting something badly but not having the authority to get it. And it exemplifies a pattern of behavior and rebellion that is as old as rebellion itself.
Here in King v. Burwell, the Court is asking “does the law really say that subsidies are only available through state exchanges?” In other words, the law is clear, but does it really mean that we have to abandon the federal exchange subsidies? This is not a new question, of course. People (and courts) have been asking that question of clearly written laws and rules since the beginning of mankind. Eve fell for the same tactic when Satan asked, “did God actually say ‘You shall not eat of any tree in the garden?’” (Genesis 3:1). She saw the fruit, saw that it was good for food and pleasing to the eye, and so she ate of it, falling for Satan’s linguistic trickery. This is the original sin—a grasp at power and authority that belongs to a greater and higher authority. In this case, however, it is a question of who has proper authority with respect to written statutes. Who has the authority to re-write laws? Do courts have the authority to re-write poorly worded statutes, or does Congress have that sole authority under the Constitution?
The Constitution is fairly straightforward in permitting the Supreme Court to decide “cases and controversies” among litigants under the existing law. There is no authority for the Supreme Court to re-write statutes (especially ones that are constitutional on their face). And yet we have a judicial body poised to potentially disregard the duties given to it by the Constitution—it’s “creator,” if you will. Where else have we seen a similar pattern—a created thing disregarding (and possibly disobeying) the will of its sovereign creator? In Romans 1, we see a similar pattern of people disregarding their creator and fashioning for themselves a code of conduct contrary to the revealed natural order of things. The creatures, in essence, shake their fists at their creator in rebellion. So too, it seems, does our judicial system figuratively shake its fist at the very thing that created it. At the end of the day, it is a question of authority. And humans have always struggled with the concept of authority.
This is not the first time there has been a potential judicial usurpation of legitimate Congressional authority. It has been happening with consistent regularity. But we should also be conscious that, even as our judges invert the order of authority, so we do the same in our own hearts every day. The solution—for both judges and citizens—is not stricter authority. The solution is, and always has been, repentance and faith in Christ. Only then will we be freed from the shackles of rebellion and liberated to the submission of good and godly authority.
Kyle Bryant is an attorney (and urban design enthusiast) with Bryant Law in Houston, Texas. His practice focuses on civil litigation and family law issues. He is also an active member at Sojourn Heights Church in The Heights neighborhood of Houston. He can be reached at