On October 30, I was invited to participate in a Cato Institute panel discussion on Halbig, King, and related challenges to the Affordable Care Act. In the wake of the conference, I’ll be writing a few posts based on the panel discussion. If you’d like to watch the entire law-focused panel, I’ve created a C-SPAN clip here. Previous reflections at Part I (Isolationism), Part II (Textualism), Part III (The Whole-Text Canon), and Part IV (Halbig’s “Two Exchanges” Problem).
Almost twenty years ago, Justice Scalia lamented how the common-law attitude had infected other forms of legal analysis, especially statutory interpretation:
But though I have no quarrel with the common law and its process, I do question whether the attitude of the common-law judge—the mind-set that asks, “What is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?”—is appropriate for most of the work that I do, and much of the work that state judges do. We live in an age of legislation, and most new law is statutory law.
Scalia, A Matter of Interpretation at 13 (emphasis in original).
Something similar has been happening with the legal challenges to tax subsidies on federal exchanges. Listen to some of the rhetoric from the challengers and judicial decisions striking down the subsidies:
There is only a frantic, last-ditch search for ambiguity by supporters who belatedly recognize the PPACA threatens health insurance markets with collapse, which in turn threatens the PPACA.
Cannon & Adler, Taxation Without Representation at 195 (emphasis added).
Any judicial decision that knocks out these subsidies will lead to a two-tier system, which in turn will lead to a collapse of the overall program.
We reach this conclusion, frankly, with reluctance. At least until states that wish to can set up Exchanges, our ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly.
Halbig Panel Op. at 41 (emphasis added).
To be fair, Cannon and Adler fastidiously avoid any such talk in their amicus briefs. Rather, they argue that the elimination of federal subsidies would not be a threat to the PPACA—to the contrary, in their view it is exactly what the PPACA envisioned. But my point here is not to sling accusations of changing rhetoric. Goodness’ knows I’ve stumbled around with this statute and evolved in my own thinking.
My point here is that this rhetorical and analytical approach, much like the approach of Justice Scalia’s common-law judge, is ill-suited for statutory interpretation. It is, I believe, the result of creeping constitutionalism—the attitude that in the name of liberty, judicial integrity, or constitutional obligation, courts must hold their noses and invalidate “good” laws because they conflict with the Constitution.
And there is indeed something noble about constitutionalism. Even good laws—the original VAWA, the ACA’s Medicaid expansion, restrictions on offensive but protected speech—must yield to conflicting constitutional provisions. When that happens, judges rightly express the unfortunate nature of the circumstance that befalls them. They don’t want to let a convicted murderer go free, but the constitution compels them.
That “results blindness” which is so powerful in constitutional litigation has much less power in statutory interpretation. A constitutional ruling that renders an entire provision or statutory scheme ineffective is wholly appropriate without second thought. The Constitution breaks for no statute. But statutory interpretation is supposed to work because statutes are supposed to work.
For example: Let’s assume the Supreme Court invalidated the individual mandate on constitutional grounds. The mandate would not be resurrected based on its central role in the overall statutory scheme. Rather, its importance to the statute as a whole would be considered in a severability analysis. Can the rest of the ACA live on without the individual mandate? Or does the Constitution’s invalidation of the mandate require the invalidation of the entire ACA? (Side note: As Abbe Gluck has observed, in the previous severability analysis before the Supreme Court, the challengers and the dissenters all argued that the mandate was essential. That’s a problem for the Halbig challengers.)
But the calculation is totally flipped in the statutory context. If you get to the end of your proposed statutory interpretation and the result “threatens” the entire statute, leads to the “collapse” of the overall program, or reluctantly has “significant” (negative?) consequences for the health insurance markets, the proper response is not: ¯\_(ツ)_/¯ No, you need to go back and check your work. Because courts should not favor statutory interpretation that renders a large portion of the statute (in this case, the federal exchanges) ineffective.
The Halbig challengers often remind people that this is not a constitutional case; this is a case of statutory interpretation and the challengers are defending the ACA. It seems like someone should probably remind the challengers of that too.