Like it or not, King v. Burwell is moving ahead, and the U.S. Supreme Court heard arguments from both sides on earlier this month. A lot of attention has been devoted to the case, with each side presenting its case. So much attention for six words – the ACA is comprised of 381,517 words and, if you count the additional regulations the word count jumps to 11,588,500. So this is a real life example of the power of words.
As per the plaintiffs in King v. Burwell, the language of the ACA only allows those states that have their own exchange to provide premium tax credits to citizens shopping through the exchange. For 37 states who are using the FFM, the law does not state anything about the insurance subsidies, and as a corollary, the ACA is illegally providing insurance subsidies to those shopping through the Federal Marketplace. If the Supreme Court rules in favor of the plaintiffs, all these people will lose their insurance subsidies unless their state builds an exchange and has it live by November 1, 2015.
It’s even more ironic when you consider the size and impact these subsidies have on people and what would happen if all these subsidies were taken away, all because of six little words that make up the ‘controversial’ language of the law. Millions of people stand to lose their subsidies in near two third states, all because of six words. Since all of this is based on the pretext of words, what do linguists have to say on the matter? Do the plaintiffs have a strong case or are they simply making a mountain out of a molehill?
Linguists might be the most interesting to participate in the debate and unravel the linguistic applications of those six words that have launched this controversy. As per the language in the law, linguists think that the Obama administration has the upper hand in the case because of some simple rules of the English language.
As per the language of the controversial text, the law presumes that each state will have its own exchange. If a citizen shops through that state exchange, the state is legally allowed to issue premium tax credits on the basis of conditions laid out in the ACA. If, however, the state does not have an established exchange marketplace, the law does not explicitly state anything about the premium tax credits, it only talks about the case where the state does have an exchange. In simpler words, the federal government is neither mandated nor prohibited from providing premium tax credits to the state’s citizens. It is a matter of choice, and the administration can go any way about it. However, if the administration is providing tax credits in one state, it is obligated to offer the same in all states as per equal protection for all.
For understanding this, another linguist put forward a popular example of definite description problem to explain the situation. The problem states “the present King of France is not bald,” but this statement is ambiguous because the presumption of the statement, that there is a King of France, is not true as France is a Republic. Hence, the statement holds no value. Similarly, in King v. Burwell, the statement presumes that the state has an established exchange, and if that is not true, the subsidy clause is meaningless. The language of the law itself holds no restriction on the subsidies. On the other hand, if the lawmakers explicitly wanted to restrict the scope of subsidies to only those states who have their own exchange, they could have used ‘only when’ to limit the subsidies to those who shopped through the state exchange. Since the lawmakers did not do that, the federal government can choose to give subsidies or not, without any restriction. Naturally, no one can force the federal government to discriminate between two states over subsidies, and under equal protection, they need to provide subsidies for all.
It will be interesting to see how this plays out. All eyes are already looking toward June/July timeframe when the court is expected to issue its decision. Until then, I expect these aforementioned six words to be continuously debated.