Any good debater could’ve seen the Supreme Court’s ruling on King vs. Burwell coming a mile away. This is because the ruling, and it’s deciding argument, come from a academic debate concept – Framer’s Intent.
The reason the Obama administration’s lawyers carried the day at the Supreme Court was because they relied on this one simple argument.
This argument centered around the definition of the phrase “the State.” According to the Obama administration, “the State” refers to the federal government. If this is the definition of the phrase, then the federal government is well within its rights to grant subsidies to qualifying individuals on the national exchanges.
Conservative groups backing King argued that “the State” should refer to the state governments and the exchanges they set up. The game here was to essentially defund Obamacare, or at least render it ineffective by denying national subsidies to those who lived in states that did not set up state exchanges.
However, conservatives got beaten because they failed to listen to what the administration was arguing from the beginning of the Obamacare debate:
“The State means the federal government.”
Conservatives may argue that they actually know that this is what the Obama administration means by the offending phrase, but have argued that this is an incorrect phrasing of the definition and is constitutionally unacceptable because it gives undue power to the federal government. That may well be the case, but in trying to build the debate around the powers of the national government, conservatives missed the definition debate game, the Obama administration was playing.
What essentially happened in the court room was a classic example of what we in the debate community call “Topicality.”
“My first argument is Topicality….”
In academic debate you have a topic that you’re given to debate. Now when the debate happens there are three levels to it.
First, you have the meta-debate, where critical arguments can be run regarding the use of language and the ideas being presented by either team.
Second, you have the topical debate. This debate, where we get the word “topicality”, focuses on the key terms of the debate and their proper definitions.
Third, you have the case debate. This looks at the costs and benefits of a particular policy.
The first level is not always debated, nor is the second, but when a disagreement emerges regarding the definition of a word or phrase, then topicality is invoked.
In debating topicality, debaters justify their definition of a phrase by certain standards. For example, one might argue that their definition of a phrase is superior to another definition of a phrase based on the context of the phrase in the debate resolution; or a dictionary definition versus a cultural definition.
In King vs. Burwell, the argument came down to topicality: A disagreement on the definition of a word or phrase, and its attendant implications.
In this case the topicality standard that won out was Framer’s Intent: The framer’s of the law got to define what “the State” meant, and (oh look!) they’re the defendant.
The point conservatives missed.
This is where conservatives should’ve understood the debate was going from the beginning. Obamacare passed on a party line vote, which meant that Democrats owned the definition of “the State” from the beginning and understood it to mean the federal government.
How can I make such an assertion?
Because this is is essentially what progressive liberals understand “the State” to be. State governments merely work, or should work, as functionaries of the state, not as separate (and equal) powers in the progressive liberal mindset.
In the conservative mind, “the State” is an institution that incorporates the entire system of government both national and state. This means that there is a legitimate debate over just who should have power in administering the many aspects of Obamacare.
For progressive liberals such a debate doesn’t even exist. It is merely an issue of how should the national government implement Obamacare and direct the states to implement it?
Judicial “Actirestraint.”
Conservatives usually advocate judicial restraint on constitutional issues, and often argue that one should interpret the law by the letter of the law.
Unfortunately, both in terms of judicial restraint and judicial activism, the Obama lawyers were going to win.
By letter of the law “the State” is a singular phrase that can only refer to one government entity. The Constitution refers to state governments in the plural as “the states.”
At the level of judicial activism, where judges make a decision based on the intent of the law, team Obama had the inside track as the lawyers in fact represented the framers of said law.
So when the administration argued Framer’s Intent saying, “This is what we meant by the phrase,” all the court could go off of was the merits of the argument at hand and say, “Shame on you for using such opaque language, make it clear next time. Case dismissed.”
Now what?
The lessons conservatives seem to be learning from this event are
1) The Supreme court is their enemy.
2) The only way to deal with Obamacare is to control the White House and Congress so they can repeal it.
These two conclusions are incorrect and will only move conservative voices to the margins of the political debate in America if they continue.
Conservatives need to refocus on defining and recapturing the constitutional debate before trying to win legislative battles. The ruling of the Supreme Court is an indictment on the constitutional hermeneutic conservatives have been relying on in the Obamacare battle so it’s time to reevaluate the way conservatives talk about the Constitution.
Secondly, conservatives need to refocus on listening to the liberal arguments that are being made. The failure of state governments, represented in King in this case, is not so much in their argumentation as in the fact that the argumentation was non-responsive to the administration’s argument.
At the end of the day, perhaps that’s the biggest lesson conservatives should take from King vs. Burwell: Listen to the opposition.
You can’t win the argument you don’t hear.