Halbig and the Problem of Creeping Constitutionalism: Cato Reflections Part V

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).

Quit hitting yourself Obamacare! Quit hitting yourself!

Quit hitting yourself Obamacare! Quit hitting yourself!

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.

Richard Epstein, Understanding the Obamacare Subsidy Rulings (emphasis added). 

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.

13 thoughts on “Halbig and the Problem of Creeping Constitutionalism: Cato Reflections Part V

  1. Pingback: The Halbig Challengers’ Biggest Textual Obstacle: Cato Reflections Part IV | Ziff Blog

  2. Pingback: Halbig and the “Whole-Text Canon”: Cato Reflections Part III | Ziff Blog

  3. Pingback: The Halbig Argument from Text: Cato Reflections Part II | Ziff Blog

  4. Pingback: Reflections from Cato: Halbig and the “Isolationist” Theory of Statutory Interpretation | Ziff Blog

  5. Pingback: Here We Go Again: Jeffrey Toobin Wades into Halbig’s Waters | Ziff Blog

  6. Pingback: TPM’s Halbig/PPACA “BOOM” Goes Boom | Ziff Blog

  7. Pingback: Halbig, Statutory Interpretation, and Lessons I Learned in Practice | Ziff Blog

  8. Pingback: A Walk Through Halbig, King, and the ACA Litigation | Ziff Blog

  9. I just don’t get all this handwringing. The law should just get fixed by Congress; this could be done quickly and easily if Congress actually wanted to. There is simply no reason for SCOTUS to seond guess the intent of lawmakers.

    The only reason that’s not happening is because it was passed in a fly-by-night operation and proponents of the law know that if Congress actually got a shot at it, it wouldn’t survive.

    • Thanks for the comment Mark. The “handwringing” is just the task of interpreting the statute as passed. Sure Congress could go back and change the law to make it read more like a Medicaid-style incentive system. Or they could clarify the role of the federal exchange. But they are not going to do either, so the Court has some work to do.

  10. This doesn’t seem right to me, because it supposes that a statute only has a single goal. Of course, all statutes have multiple goals, not least of which is limiting the monetary and other costs of furthering the purposes of the statute.

    For example, suppose a statute proposed to further the adoption of driverless cars by subsidizing wireless responders in “intrastate but not interstate” highways. Then suppose it becomes obvious that, without responders in interstate highways, driverless cars won’t be adopted. There doesn’t seem to be any principled reason to resolve any ambiguities in favor of allowing subsidies for interstate highways. From a purely logical viewpoint, if interstate highways are necessary to the success of the statute’s purpose, it would make just as much sense to eliminate the subsidies to intrastate highways.

  11. Pingback: Justice Kennedy and a Functioning Congress | Ziff Blog

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