Thursday, March 05, 2015

Clear Text versus Extra-Textual Considerations: Bond, Noel Canning, and King

Neil Siegel

For all the textual parsing back and forth at oral argument yesterday in King v. Burwell, the outcome will likely turn on whether five Justices will accept the submission of the challengers that the semantic meaning of four words in the Affordable Care Act (“established by the State”) so clearly excludes the availability of tax subsidies in federally facilitated exchanges as to render irrelevant all other interpretive considerations.  Those other considerations include the implications of the challengers’ reading for other provisions in the ACA, the basic purpose of the law to secure affordable health insurance for almost all Americans, the financial and human consequences of ruling in favor of the challengers, deference to reasonable agency interpretations of the law, and federalism concerns raised by the challengers’ interpretation.  In two cases last Term, Justice Scalia offered just such a framing of the question presented, and in both of them Chief Justice Roberts and/or Justice Kennedy rejected that framing.

The first case was a statutory interpretation decision, Bond v. United States, involving the meaning of Section 229 of the Chemical Weapons Convention Implementation Act of 1998.  In that case, the Court relied in part on extra-textual considerations in determining that the text of the statute was unclear.  In this case,” the Chief Justice wrote for the majority, “the ambiguity derives from the improbably broad reach of the key statutory definition given the term—‘chemical weapon’—being defined; the deeply serious consequences of adopting such a boundless reading; and the lack of any apparent need to do so in light of the context from which the statute arose—a treaty about chemical warfare and terrorism.”  Justice Kennedy joined the Chief Justice’s majority opinion.  By contrast, Justice Scalia, joined by Justices Thomas and Alito, thought that the meaning of the provision was clear.

The second case was a constitutional decision, NLRB v. Noel Canning, involving the meaning of the Recess Appointments Clause.  During oral argument, Justice Scalia repeatedly asked the Solicitor General whether clear constitutional text could ever be trumped by longstanding practice.  See Transcript at 6-8.  Although the Solicitor General answered affirmatively, he also emphasized that it would be “extremely unlikely” for longstanding practice to develop in a way that is contrary to clear text.  Unlike the Solicitor General, no Justice in Noel Canning suggested that practice (or any other considerations) could prevail over clear text.  Rather, the majority in Noel Canning premised its reliance on extra-textual considerations—including historical practice and the basic purpose of the Recess Appointments Clause—on the claim that the text of the clause was ambiguous.  That majority included Justice Kennedy.  Justice Scalia, joined by the Chief Justice and Justices Thomas and Alito, thought that the meaning of the Clause was clear.

At yesterday’s oral argument in King, Justice Scalia again asked the Solicitor General whether “it [is] not the case that if the only reasonable interpretation of a particular provision produces disastrous consequences in the rest of the statute, it nonetheless means what it says.”  Transcript at 47.  This time, the Solicitor General did not bite.  He instead responded that the statute does not say what the challengers and Justice Scalia were arguing that it says.  

Justice Kennedy did not seem to think that the government had the better of that textual argument, but he was palpably concerned about certain extra-textual considerations associated with construing the statute as the challengers do.  Specifically, Justice Kennedy seized upon “a serious constitutional problem” if the Court were to accept the challengers’ reading of the statute—a problem that Abbe Gluck has underscored to great effect.  “It does seem to me,” Justice Kennedy told counsel for the challengers, “that there is something very powerful to the point that if your argument is accepted, the States are being told either create your own Exchange, or we’ll send your insurance market into a death spiral. . . .  The cost of insurance will be sky-high, but this is not coercion.”  Transcript at 16.  Such concerns may cause Justice Kennedy to accept the government’s interpretation of the ACA in order to avoid the constitutional question.  (Indeed, even if one does not accept the coercion objection, there is a serious constitutional question whether the states had fair notice of the consequences if they declined to establish their own exchanges.)

It is difficult to predict what will happen.  Chief Justice Roberts said little about the merits, and Justice Kennedy said a number of things that should bring comfort to both sides.  If Bond and Noel Canning are informative, however, then it is easy to see how the government may prevail.  In both Bond and Noel Canning, Justice Scalia asserted a strict separation between the clear semantic meaning of a legal text and extra-textual considerations.  Justice Kennedy rejected that framing in both cases, and the Chief Justice rejected it in one of them.  The government is likely to win in King as long as either one of them departs from Justice Scalia’s framing.

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