Friday, June 26, 2015

Congress has a “plan” and the Court can understand it – The Court rises to the challenge of statutory complexity in King v. Burwell

Abbe Gluck

[posted earlier on SCOTUSblog]

     "A fair reading of legislation demands a fair understanding of the legislative plan.”  So concludes the game-changing statutory interpretation opinion of Chief Justice John Roberts in King v. Burwell. The opinion begins with five pages of detailed explanation of how the Affordable Care Act’s main provisions operate.  This is not Justice Antonin Scalia’s textualism.   King turns out to be a case about understanding Congress, not finding it inscrutable.  And it is the first major statutory case in which, rather than shying away from the difficult questions raised by the mounting complexity of the modern statutory era, the Court rises to meet it.  In King¸ the Court tells us, in no uncertain terms:  “We’ve got this.”  In so doing, the case may have ushered in the next chapter in the story of statutory interpretation, the Court, and its relationship to Congress.     

        Yes, Congress is more complex than ever and the ACA is unbearably long.  Yes, the ACA’s legislative process was highly unorthodox.  Yes, there is an unprecedented and unusual number of overlapping delegations to agencies in the statute, one of which – the overlap between the Department of Health and Human Services and the IRS – was at issue in the case.  Yes, the ACA  was “inartfully draft[ed]” (the Court’s phrase).  The majority acknowledges all of these challenges , but it does not take the path that the Court’s textualists usually take in the face of them – throwing up their hands and saying that such complexity is all the more reason to adopt a literal approach because Congress can never be understood. Rather than use the ACA’s complexity to say that its meaning is hopelessly indeterminate, King tells us that, even in the face of such complexity, Congress not only had a plan but that the Court is more than capable of discerning it.  The Court is all grown up.

I previously wrote here that King would be textualism’s big test.  The case, as briefed, struck at the soul of legislation experts because it so starkly highlighted a pressing question that the Court has long resisted answering: How will the law of statutes adapt to today’s era of legislative complexity?  Would the text-oriented Court give the ACA the kind of sophisticated reading that textualism’s advocates have long told us textualism stands for, or would King reveal that statutory interpretation is nothing but an unprincipled game – an opportunity for very smart lawyers to seek loopholes in massive federal laws with the sole mission of pulling statutes to pieces.  It smelled like a constitutional battle on the cheap.
          But that’s not what we get in the King opinion. It’s not that a sophisticated Scalia-esque textualist opinion couldn’t have sustained the result;  it could have.  But in an important sense, the Court chooses not to fight on the typical textualist terrain at all, and instead gives us a different vision of the Court’s role in the cases like this than we have seen in a  long time.  King  is one of the only major text-oriented statutory interpretation decisions in recent memory in which the majority opinion barely includes a single canon of interpretation.  Most major statutory interpretation cases are Karl Llewellyn’s nightmare – a  barrage of canon vs. counter-canon. That is what many of us expected from King. But instead of duking it out through the canons, the King majority opinion outright rejects some of textualism’s favorites, including the rule against superfluities and the presumption of consistent usage, on the ground that they simply are not legitimate or accurate assumptions to apply to a statute as complex and as unorthodoxly drafted as the ACA.   

         Justice Scalia's dissent views these departures from favorite textual presumptions as an exercise in activism, even though those presumptions assume a level of drafting perfection that rarely holds.  But what actually justifies the textual canons of interpretation in the first place if not their connection to how Congress works? The Court for decades has argued that the canons are legitimate precisely on the ground that they are realistic assumptions of how Congress drafts or are part of a shared set of conventions that put Congress and courts on the same page. My own empirical work casts serious doubts on those assumptions.  King drives home the point. What could be more activist than using judge-made rules of interpretation to impose a meaning on a statute that has no connection to its context and would literally smash the law to pieces? It is no accident that the majority opinion opens with the lengthy explanation of the ACA. The Court is showing us that it understands this law, and that it is important that it does.

       Textualism rests in many ways on precisely the opposite assumption.  Textualism finds its roots in law and economics, and in particular in its theory of public choice, which emphasizes the impossibility of the notion of collective intent among 535 legislators. The upshot of this argument is that Congress can never be understood and so courts shouldn’t bother trying.  King rejects that view.  This is not to say that King is an atextual decision.  To the contrary, it turns on a sophisticated, close reading of the ACA’s provisions and structure and it does not so much as whisper the phrase “legislative history.”  But the opinion does not use the tools of textualism to shirk responsibility for the result or as a substitute for justifying its decision in the context of what Congress actually did.

      That the Court went down this road is important because it didn’t have to. There were myriad ways that the Court could have reached same result while assuming much less responsibility or giving much less respect to Congress.  Most legal experts expected the Court to take one of these easier paths.  It could have relied, as it often does in hard cases, on a default presumption of statutory interpretation, like federalism, to provide an uncomplicated way out.  Or the Court could have put the responsibility on the agency, giving the agency so-called “Chevron deference” to determine the statutory language for itself.  

       But the Court did neither, and instead put its own duty and relationship to Congress front and center, even invoking Marbury v. Madison in the process.  Nowhere do we see this more clearly than in the Chevron portion of the opinion. Not only did the Court reject Chevron deference, but it embraced the so-called “major questions” rule –  the presumption that Congress does not implicitly delegate major statutory questions to agencies. The result of not deferring to the agency? The Court held “it is instead our task” – the Court’s own duty on such a major question –  “to determine the correct reading of Section 36B.”

     Court watchers know that the Chief Justice for some time has had misgivings about extending agency deference too far. One way to read King is simply as an extension of those positions. But a related point, and one consistent with the approach of the rest of the opinion, is that the Chief Justice is resisting the idea that the Court has only a minimal role to play in, or limited competence to decide, these kinds of complex questions.  Textualists love Chevron because it lets them shift hard questions to the political branches.  In contrast, King is an opinion joined by six Justices who have never fully aligned themselves with the hyper-formalist version of textualism anyway, and written by a Chief who has resisted the Court’s relinquishment of power over the law to agencies and who clearly still sees a central role for the federal courts to play, even in the age of law dominated by statutes and administration that sometimes seem unbearably complex.

        This is only a preliminary take, and one I will explore much further in my comment on the case in the November issue of the Harvard Law Review. But one has to wonder if King is a sign of a new chapter in the Court’s statutory-interpretation jurisprudence.  Is it possible that the Chief Justice, who has not appeared to have much interest in those debates, actually does have a developed theory of statutory interpretation, and one that actually looks a lot more like the pre-textualism, pre-purposivism method of interpretation known as “Legal Process” theory than we might have expected?  The Legal Process School – associated with legal giants Henry Hart and Albert Sacks of Harvard (the alma mater of five of the six King majority justices, including the Chief himself) – brushed aside the harsh and cynical realism of the prior era in favor of an approach that, while still tethered to text, was grounded in a focus on institutional context, and a belief in the reasonableness of federal legislation and the federal courts’ competence and duty to understand it.  In King , the Court did just that.

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