The Volokh Conspiracy

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Good textualism vs. bad textualism


Over 30 amicus briefs were filed in support of the government's position in King v. Burwell. Many of these briefs make naked political appeals, urging the Court to uphold the contested IRS rule lest it risk disrupting insurance markets, undermining the operations of the PPACA, or forcing the political branches to act. Some of the government-side amicus briefs make serious legal arguments, however, including several briefs written by or on behalf of legal academics.

One such amicus brief was filed on behalf of a prominent list of legal academics who focus on questions of statutory interpretation and administrative law: William Eskridge, John Ferejohn, Charles Fried, Lisa Marshall Manheim, and David Strauss. This brief purports to make the textualist argument in support of the government's position, and some of the brief's signatories are noted experts in the field. Prof. Eskridge, for instance, is easily one of the most important scholars of statutory interpretation writing today. Everything he writes is worth a read. Accordingly, a brief bearing his name merits a close and careful look.

The brief begins with an extensive discussion of the principles of statutory interpretation and, in particular, the requirements of textualism. Although the most prominent names on the briefs are critics of textualist approaches to statutory interpretation, they recognize that textualism holds greater sway in the courts generally, and at One First Street in particular, than it might in the academy. They craft their arguments accordingly.

"Textualism does not require courts to read statutory provisions in a vacuum," the amici declare. They're right, of course, but no one is suggesting otherwise. To quote Justice Elena Kagan, "I agree with [the academic amici] (really, who does not?) that context matters in interpreting statutes." Yet as I've demonstrated at length before, context does not save the government's case, nor does it justify reading discrete phrases to mean their opposite. Such statements in a brief like this are nothing more than throat clearing. They do no real work.

The academic amici cite many of the relevant cases on statutory interpretation. For instance, they properly cite the Court's opinion from last term in Utility Air Regulatory Group v. EPA, to the effect that "reasonable statutory interpretation must account for both 'the specific context in which . .. .language is used' and 'the broader context of the statute as a whole.'" Again, who disagrees? But that's not all there is to the UARG opinion, however. What the amici neglect to mention is that the same opinion went on to "reaffirm the core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate." Perhaps this language is not quoted because it creates a problem for the amici's argument. It is one thing to rely upon context to conclude that the phrase "tangible object" is limited to business-related documents and records—to the exclusion of fish—quite another to argue that it means gaseous substances or ethereal vapors; quite another to say that "established by the State" means established by the federal government.

The heart of the brief is an analysis of the relevant statutory provisions of the PPACA—or, I should say, some of the relevant provisions. For all the brief's talk about the need to consider context and not to take words or phrases in isolation, it ignores key provisions and grossly misinterprets others.

The brief claims that "the ACA's definitional provisions show that all exchanges established 'under section 1311' are "Exchange[s] established by the State" for purposes of the Act." In support of this claim, the brief first cites the definition for "Exchange" provided in Section 1563: "an American Health Benefit Exchange established under section 1311 of the Patient Protection and Affordable Care Act." So far so good, but this only provides a default definition for an exchange as a "Section 1311 exchange," and says nothing about whether it was established by a state or the federal government. Moreover, Section 1551 of the PPACA expressly provides that this definition is only a default; it applies "unless specifically provided for otherwise." In other words, an "Exchange" need not be a Section 1311 exchange where text and context so indicate. Yet this qualification is nowhere cited in the brief, nor are its implications ever considered.

The Section 1563 definition establishes that, as a general rule, exchanges under the PPACA are assumed to be Section 1311 exchanges. The issue is whether such exchanges, when established by the federal government, can be said to be "established by the State." To substantiate this link in their argument, the brief claims that "section 1311 provides that '[a]n Exchange shall be a governmental agency or nonprofit entity that is established by a State.'" According to the brief, this is one of the statute's "definitional provisions" that shows that "the phrase 'Exchange established by the State under section 1311' is a term of art." If only that were so.

The "definitional provision" amici cite is nothing of the kind, as text and context make abundantly clear. The specific provision relied upon by the amici is written and expressly labeled as a "requirement" of exchanges created under Section 1311, not as a definition, and -when read in context—clearly operates as such. The provision cited is Section 1311(d)(1). Here it is:

(1) IN GENERAL.-An Exchange shall be a governmental agency or nonprofit entity that is established by a State.

This provision imposes a requirement on states that qualifying exchanges be governmental or nonprofit entities. It operates to preclude a state handing over its exchange to a for-profit entity. It does not—indeed, cannot be read—as defining all exchanges as "a governmental agency or nonprofit entity that is established by a State" without completely obliterating the that function. Indeed, read as the amici suggest, it would allow a state-endorsed exchange created and operated by Amazon to qualify as a "nonprofit entity that is established by the State." And the amici accuse others of ripping provisions out of their context?

It gets worse. For while the amici are conjuring up definitions that Congress did not provide, they are also ignoring relevant statutory definitions that Congress did provide. Most significantly, the brief makes no mention whatsoever of the PPACA's definition of "State." Section 1304 provides that "the term 'State' means each of the 50 States and the District of Columbia." Congress could have defined "State" to include the federal government, but it did not. Nor did it adopt equivalence language of the sort contained in the House bill or which was adopted concerning federal territories.

Given that the key question is what, if anything, Congress meant by an exchange "established by the State," one might think the definition of "State" would be relevant. After all, we're supposed to look at the whole text. Yet it is never mentioned in the brief. In a footnote the amici write: "Petitioners are not free to ignore Congress's definition just because it's not the definition that they would give to the same term." It seems they should have heeded their own advice.

The brief also repeatedly miscites one of the relevant provisions, referring to Section 1321 of the PPACA as 1322. I expect this is just a typo, and lord knows I've made plenty of those over the years. But perhaps it is indicative of the care with which the brief's authors examined the relevant text or the degree of familiarity the amici have with the statute. For just as any member of Congress who read the PPACA prior to passage would have understood the plain meaning of "exchange established by the State under Section 1311," anyone who has truly focused on the PPACA provisions at issue in King would know it is Section 1321 that tells the federal government to "establish" exchanges "within the state," and not Section 1322.

When the brief turns to its discussion of interpretive canons, it makes another conspicuous omission. As noted in the treatise, Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan Garner (which the amici cite on four separate occasions in their brief), courts are to interpret statutes so as to give effect to every word used by Congress: "If possible, every word and every provision is to be given effect. . . . None should be ignored. None should needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence." (Scalia & Garner at p. 174). Yet that is precisely the effect that the academic amici's interpretation would have for the phrase "established by the State."

Nor can petitioners account make sense of what we know of the drafting history of the relevant provisions, including the fact that the phrase "established by the State" was added in multiple places at multiple times during the drafting process. Under their interpretation, such additions were pointless and serve no purpose whatsoever.

I could go on—noting the briefs strained reading of other provisions and failure to note (let alone address) the various anomalies throughout the PPACA their interpretation would create—but I have other things to do, and I think I've made my point.

As should be clear by now, I was quite underwhelmed by this brief. When I saw the list of signatories, I expected something more compelling. The arguments put forth in the brief are likely convincing to those who are not particularly familiar with the relevant statutory provisions and arguments. For those immersed in the case, on the other hand, the brief's shortcomings are quite plain.

Perhaps I should not have been surprised. After all, while the brief purports to make a "textualist" argument, the most notable names on the brief are outspoken critics of textualism, not adherents. The various sorts of statutory interpretation advanced by Prof. Eskridge, for example, would undoubtedly offer more support to the government's position than does a more sober and restrained textualist analysis. The only problem is that the current Court has not adopted Prof. Eskridge's theories, which is why the brief is styled in textualist trappings.

Supporters of the government's position would like the Court to believe that traditional textualist analysis can be used to support the government's position. Those who make such claims are mistaken, as the deficiencies of this brief make abundantly clear. According to the academic amici, King is "a case about good textual analysis vs. bad textual analysis." Precisely, and their brief proves the point.

[Note: Updated to fix a typo of my own. Homer nods.]