The Limits of Reading Law in the Affordable Care Act Cases

INTRODUCTION One of the most highly lauded legacies of Justice Scalia's decades-long tenure on the Supreme Court was his leadership of a movement to tether statutory interpretation more closely to statutory text. His dissents in the Affordable Care Act cases--National Federation of Independent Business v. Sebelius (1) and King v. Bunnell (2)--demonstrate both the nature and the limits of his success in that effort. These were two legal challenges, one constitutional and the other statutory, that threatened to bring down President Obama's signature legislative achievement, the Patient Protection and Affordable Care Act. Both times the Court swerved away from a direct collision. And both times Justice Scalia accused the Court majority--led by Chief Justice Roberts--of twisting the statutory text. (3) Justice Scalia was right about the twistifications. But that does not mean he was right to condemn them both. Sometimes the governing law of interpretation calls on judges to adopt an interpretation other than the one that most straightforwardly follows from the application of standard interpretive conventions to statutory text. (4) NFIB v. Sebelius was just such a case. The Supreme Court had to choose between two interpretations of a provision regarding mandatory insurance coverage. (5) The most straightforward interpretation--as a requirement to have the right kind of insurance, backed up by a financial penalty for noncompliance--would have resulted in a holding of unconstitutionality. (6) A textually inferior interpretation--as a tax on not having the requisite insurance--would have avoided such a holding. (7) Under the Court's precedent governing that kind of choice, the Court was required to choose the constitutionally salvific interpretation--even over the textually superior one--as long as it was "reasonable" and "fairly possible" to read it that way. (8) And it was. In King v. Burwell, by contrast, the law of interpretation did not authorize the Justices to opt for the textually inferior interpretation. Chief Justice Roberts found ambiguity in unambiguous statutory text and then resolved that ambiguity by reference to an interpretation that would make the "legislative plan" work. (9) Because Chief Justice Roberts avoided explicit reference to legislative purpose and legislative history--two hallmarks of the "bad old days" before the rise of Scalian textualism (10)--he was constrained to generate ambiguity through textual analysis. And it is precisely because of this constraint that careful opinion readers can see where his reasoning comes up short. This is a testimony to Justice Scalia's success in leading the Court away from a more purposive approach toward a more textualist approach. But Justice Scalia and his textualism were still losers in King. Scalia's need to dissent in that case shows not only the limits of textualism's ascendancy, but also the need for a sounder jurisprudential footing for textualist interpretive practice. The interpretive intentionalism elaborated by Richard Ekins in recent years would have provided a jurisprudential foundation that enabled engagement of Roberts on his own terms. (11) A comparison of Ekins's account of legislative intent with Roberts's conception of the legislative plan enables one to understand why the plan legislated by Congress--not the altered plan advanced by the Obama Administration and accepted by the Court majority--should have been treated as authoritative in King. (12) A jurisprudentially grounded theory of interpretation--whether textualist, intentionalist, pragmatist, or what have you--matters in a peculiarly important way in actual adjudication. It does not legally control, at least not directly. The law of interpretation does. But the law of interpretation is largely unwritten and largely uncodified. It yields no uniquely correct directive in some cases. And there are more of these "hard cases" the further one goes into the courts and up the appellate hierarchy. …