The Chief Justice’s Brand of Textualism

If you’re reading this, you already know that the Supreme Court issued King v. Burwell today and that it was a 6-3 win for the government, with Chief Justice Roberts writing for the majority. The Chief’s opinion focused on the text, context, structure, and “scheme” of the statute in concluding that the phrase “established by the State under section 1311” includes exchanges established by the federal government under section 1321. Rick Hasen writes that this aspect of the Court’s opinion “rehabilitates a focus on the law’s purpose as a touchstone to interpretation, over a rigid and formalistic textualism that ignores real-world consequences.”

I agree generally with this sentiment. King shows that textualism can be flexible. But I want to use this post to put a bit of a finer point on it. Conservatives (rightly in my view) fear a purpose-driven statutory interpretation because it can do violence to a statute’s text and thwart Congress’s more finely tuned policy trade-offs. The ACA’s general purpose is to provide affordable healthcare for all Americans. But Congress effects that purpose by making choices. Some folks qualify for some things, others don’t. Some people get subsidies, others don’t. Even if the purpose of the ACA is universal coverage, that purpose doesn’t mean that every provision should be read to provide coverage in all circumstances.

Chief Justice Roberts doesn’t give legislative “purpose” such omnipotence. Rather, he engages in a two-step statutory interpretation that privileges the text and context of the relevant provision before turning to a more general inquiry into structure and purpose.

He starts (in Part II.A of the opinion) by looking at the phrase “established by the State under section 1311” and how those terms are used throughout the statute. He also looks at the language of section 1321 regarding federally operated exchanges. The entire inquiry involves definitions, cross-references, parallel language—in other words, text and textual context. Based on this inquiry and this inquiry alone the Chief concludes that the operative language is ambiguous, that the Court must look beyond the pablum of “state means state.”

To resolve this ambiguity, the Chief Justice then looks to “the broader structure of the Act.” Here’s the key graf:

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Only here, in Parts II.B and II.C of the opinion, does the Chief turn to a more general discussion of purpose and statutory scheme. This discussion does not create ambiguity, nor does it trump statutory text. Rather, the Chief uses the statutory scheme to resolve ambiguity that is based on the text itself. That’s a far cry from the free-ranging purposivism feared by conservatives.

In the end, the Chief Justice’s opinion mirrors the sort of pragmatic textualism for which I’ve previously advocated. Though he doesn’t use my reference to A Few Good Men, the Chief does recognize that the statute’s provision for federal fallback exchanges is the biggest problem for the challengers’ position:

Section 18041 refutes the argument that Congress believed it was offering the States a deal they would not refuse. That section provides that, if a State elects not to establish an Exchange, the Secretary “shall . . . establish and operate such Exchange within the State.” 42 U. S. C. §18041(c)(1)(A). The whole point of that provision is to create a federal fallback in case a State chooses not to establish its own Exchange. Contrary to petitioners’ argument, Congress did not believe it was offering States a deal they would not refuse—it expressly addressed what would happen if a State did refuse the deal.

Or as I put it back in November:

Why the two exchanges? If Congress intended the subsidies to operate as a threat, and Congress thought the threat would uniformly be effective, then there shouldn’t have been any need for a fallback. Why would it be necessary to provide for federal exchanges? The very existence of the federal exchanges in the text of the ACA implies two things: (1) they must serve some purpose and (2) Congress understood that the federal exchange would be necessary in at least some number of states.

And the Chief concludes by rejecting isolationism:

Petitioners’ arguments about the plain meaning of Section 36B are strong. But while the meaning of the phrase “an Exchange established by the State under [42 U. S. C. §18031]” may seem plain “when viewed in isolation,” such a reading turns out to be “untenable in light of [the statute] as a whole.” Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 343 (1994). In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.

Lastly, he recognizes that statutory interpretation requires judgment. Contra Justice Scalia or the government’s more vocal defenders, this was not an easy case resolvable by slogans or quick reads:

Reliance on context and structure in statutory interpretation is a “subtle business, calling for great wariness lest what professes to be mere rendering becomes creation and attempted interpretation of legislation becomes legislation itself.” Palmer v. Massachusetts, 308 U. S. 79, 83 (1939)

So now that’s over. Folks are going to receive their insurance subsidies and we can all get back to doing whatever it is we did before the Halbig case got started.

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2 thoughts on “The Chief Justice’s Brand of Textualism

  1. Why do you think the Court (Roberts) did not just apply Chevron deference to the agency’s interpretation of the statute? Strategic?

    • Good question. I’d probably go to Prof. Knudsen or Prof. Watts for a more-knowledgeable response, but here’s my thought: There is thinking throughout admin law that Congress cannot lightly be assumed to have delegated “big issues” to administrative agencies, absent an express delegation. Here, the ACA does not expressly say that the IRS gets to decide *whether* tax subsidies are or are not available on federally operated exchanges. Therefore, under this “big issue” exception to Chevron, the IRS can gap-fill elsewhere when administering the statutory scheme, but not on this specific question. In the Court’s view, the question was just so fundamental and binary (i.e. the answer was either “yes” or “no” as opposed to a question of administrative fine-tuning) that the agency got no deference.

      My guess is that there will be a lot written about the Chevron issue in the months to come. (There’s already a lot out there on a few blogs discussing this point.) But this could be a sort of breadcrumb left behind by the Chief, to be picked up in future cases. King could well be cited in future cases for the “big issue” exception.

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