Justice Kennedy and a Functioning Congress

Earlier this week Justice Kennedy and Justice Breyer testified before a House Committee. I’m sure they made a lot of news with their statements, but obviously the news that caught my eye was related to King v. Burwell—the now-pending case involving the Affordable Care Act.

For example, Josh Blackman thinks that this portion of Justice Kennedy’s testimony might offer a clue into the Justice’s thinking on King:

We routinely decide cases involving federal statutes and we say, well, if this is wrong, the Congress will fix it. But then we hear that Congress can’t pass a bill one way or the other. That there is gridlock. Some people say that should affect the way we interpret the statutes. That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of the government.

Why is this relevant? Well, according to Prof. Blackman this statement “bears on the issue of King v. Burwell” at least in part because Kennedy is saying “that ‘gridlock’ should not impact whether the Court invalidates statutes.” As Prof. Blackman notes, during the King argument the Solicitor General “told the Court that ‘this Congress’ would not fix the ACA if the Court” ruled against the government. Moreover, Prof. Blackman draws a comparison between the potential “gridlock” point in King v. Burwell and a somewhat similar point that arose following Shelby County, which is that “the Court can give Congress a task they know they won’t do.”

I’m not in the business of reading tea leaves, so I’m not going to discuss whether Justice Kennedy’s statements actually have any predictive value for the decision in King v. Burwell. I am, however, in the business of writing about King v. Burwell, so I have two responses to Prof. Blackman’s post.

First, Prof. Blackman interprets Justice Kennedy’s remarks as involving “whether the Court invalidates statutes” and whether Congress would “fix the ACA.” And he compares the issue in King to the fallout from Shelby County. This is a prime example of constitutional modes of analysis creeping into the act of statutory interpretation. I make this point not merely to be punctilious. Obviously Prof. Blackman knows that King is not (primarily) a constitutional case, that it does not involve the invalidation of a statute, and that it is not like Shelby County in that regard. Indeed, he specifically mentions the IRS rule the very same post!

So what’s my point? This: People who (rightly!) focus on the limited powers of Congress and the Constitution’s checks on federal power in constitutional cases (like Prof. Blackman) can sometimes let that limiting and power-sapping methodology creep into their legal analysis even in cases of pure statutory interpretation—cases like King. And that methodological creep may prevent those folks from interpreting statutes in a manner that gives proper effect to the legislative intent as derived from the text of the statute. When faced with a constitutional infirmity, a court doesn’t generally try to make a law “work.” But when faced with a potentially confusing or contradictory question of text, a court should try to make the statute work.

This interpretive method is not controversial; there are numerous textual and contextual canons on this point. But a pragmatic intent-advancing method of statutory interpretation—even one based in text—may not be natural or intuitive for people more prone to a limited constitutional mode of thinking. In other words, it might just seem “wrong” in some way.

Second, I think that Prof. Blackman is slightly overplaying or misapplying Justice Kennedy’s remarks. Justice Kennedy said “if this is wrong, the Congress will fix it.” Prof. Blackman then pivoted to whether Congress would “fix the ACA” following a ruling against the government in King. See that switch? The “this” and “it” to which Justice Kennedy was referring was the Court’s decision, which could be “fixed” by Congress with a clarifying amendment. But Prof. Blackman applies that “fix” language to the statute itself. That application implies that the Court’s interpretation is correct, but that the law Congress passed was somehow broken and in need of fixing all along. Sure, Congress might pass a “broken” statute from time to time. As I’ve said before, however:

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.




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