The Law Professors' Brief in King v. Burwell

In the challenge to the Affordable Care Act now under consideration by the Supreme Court, an  amicus curiae brief was filed by law professors William Eskridge, John Ferejohn, Charles Fried, Lisa Marshall Manheim and David Strauss. The brief sets out an account of textualism in statutory construction, contrasting it with “purposivism” – which takes the intentions of legislators to be the touchstone of interpretation. The brief then applies textualist methods in arguing that the government's (the IRS's) interpretation of the disputed language in the ACA should be upheld.

I think that the brief is largely correct about the political theory underlying textualism, the interpretive tenets of textualism, and the application of those tenets to the ACA. I want to examine a few objections from the side of theory.

 

(I emphasize that this is an exercise in theory; it will not advance the project of advocacy. The first lesson that the philosopher or political theorist must remember when grabbing his or her lawyer briefcase is that judges, however smart they may be, will not tolerate dialectic of greater than three levels.)

Purposes, Statutes, and Legislators

The brief's theme distinguishes the textualist approach from purposivism. Despite this, the professors have no compunction in talking about the “design” and even the “purpose” of the ACA. Strictly speaking, however, only persons have purposes. Well, perhaps some higher animals, especially your dog, share the purpose forming faculty with us. Rocks, stars, and pi, however do not; neither do concertos, buildings, statues or statutes. The latter do not form purposes or do things on purpose, and have purposes at all only in derivative senses.

This gives rise to the potential criticism that to talk about the purposes of a statute is crude anthropomorphizing. At bottom statutory purpose is, and can only be, the purposes of the legislators in general or the sponsors or drafters in particular. Were this right, then the whole program of textualism would be based upon a mistake. If all statutory purpose were really legislator purpose, then eschewing statutory history would be counterproductive to the point of absurdity. Holmes's distinction between "what the legislature meant" and "what the statute means" could not be drawn. (Holmes, Collected Legal Papers, 207.)

We should, I think, follow along with this criticism only so far as to admit that statutory purpose, like the purposes of other inanimate things, is in a significant respect derivative. Derivative purposes, however, can be important, and those purposes are often not solely understood, or even best understood, in terms of mental states of their creators.

The world of human artifacts is chock full of purposes. The light switch, toothbrush, car brake, and office building cannot even be conceptually separated from their purposes. Of course, each came to its place in our environment through the actions of a long sequence of persons, some mix of inventors, designers, fabricators, and business people – all of whom had purposes in mind. But to say that the purpose of a toothbrush or a light switch is constituted by some collection or selection of those upstream purposes would be a metaphysical extravagance, and a false one at that. A toothbrush has a purpose in a way that is perfectly obvious, but that purpose does not “reduce” to the contents of the minds of any determinate set of persons in tooth brush history. In fact, it is the purposes of those downstream, the teeth brushers, that are more important than the designers and marketers in the ontology of the purpose of the toothbrush.

When an archaeologist concludes that a piece of obsidian found in Guatemala had the purpose of a wood carving knife, it is not a conclusion based on the mental states of the fabricator of the blade. The Mayan glyphic corpus includes no biographies of obsidian artisans. The archaeologist infers from properties of the blade, from wood carvings, and from the accumulated knowledge about the Mayan way of life. If anything, there may be backward inferences, from the fact that it was a carving knife and not a sickle, that lead us to the artisan’s state of mind in using a honing technique tending towards a more robust but somewhat less sharp blade. There is always a risk that such inferences will be wrong as to the artisan's or the legislator's real purposes. Human actions and human minds are sometimes connected in unexpected ways.

The purposes of most made things are primarily understood by looking downstream to the purposes of their users and the circumstance of their use, not upstream to the purposes of designers and makers. Those upstream will themselves have been focused upon the users and the circumstance of use, or, at least, they better have if they hope for the success of their products.

Most statutes have one or more perfectly obvious purposes. Those purposes often do correspond to the intentions of lobbyists, drafters, and those who cast their votes in the chamber. They do not always so correspond, however, and when they do, the correspondence may be partial, complex, and indirect. It is devoutly to be hoped that there will be a closer correspondence to the purposes and preferences of those who will be affected by the legislation.

Statutes often have preambles, and preambles typically set out, or purport to set out, the purpose of the act. Preambles, where they exist, have the important distinction of having actually been enacted. Therefore, their bearing upon the interpretation of the statute is just as firmly grounded in considerations of legitimacy as is the rest of the statute. A textualist in looking for statutory purpose will take a preamble very seriously. 

I stop short of saying that preambles, so far as they set out the purpose of the law, are absolutely definitive. It is not impossible for a preamble to be in some conflict with the operative provisions of the statute. This can happen, for example, where a late amendment to an operative provision is made without a corresponding amendment to the preamble.

In what follows I will assume that the textualist is seeking to establish, against the purposivist attack, the bona fides of the concept of statutory purpose even for statutes that, like the ACA, lack a preamble.

Suppose that a statute that raises the tax on alcoholic beverages is of this sort. Without preamble it launches straight into operative provisions. Some of the legislators voted for it as a revenue measure; some as a disincentive to drinking, some to raise revenue and disincentivize drinking, some to raise revenue or disincentivize drinking, and some to curry favor with their party whip or the noisier or more contribution-generous segment of their constituents.

Does this legislation have a purpose? Of course it does. It has a purpose to raise the tax on alcohol. If it is a simple across the board percentage tax added to the retail price, that may be about all we can say about the purpose of the statute. If the tax is so many cents per pint or per ounce, it will no doubt involve a schedule with different rates per unit depending upon the particular beverage, with a different tax on low alcohol beer than on brandy or vodka. It may or may not be possible to read some additional statutory purpose from these particulars. A high tax on a beverage with an elastic demand curve has the aroma of the old temperance leagues, whereas a tax that increases with the degree of inelasticity looks like a revenue producer.

Purposes can be read from the language and structure of a statute even if we know absolutely nothing about its drafts, committee reports, debates, or the intentions of anyone involved in the process of taking it from conception to enactment. This fact underlies a first approximation test for the separation of statutory purpose from legislator purpose.

Test: What purpose can we glean from the statute if we know nothing about the legislative history?

If something like this test is both conceptually sound and gives appropriate results, then we will have defanged the attack that textualism's “statutory purpose” can be nothing more than disguised legislative purpose. We will have succeeded in showing that textualism really is distinguishable from purposivism.

I concede, however, that the test as set out is only a first approximation. It needs refinement by specifying who “we” are, what we know, and, perhaps, even what our own purposes are.

First, some textualist fundamentals. We assume that we have a complete knowledge of the language of the statute as spoken (and written) in the political territory in which the statue is operative at the time it was passed. This includes a knowledge of any technical language that appears in the statue, whether legal terms of art or the specialized language of any discipline drawn upon by the statute, for example the medical insurance industry. For more on the technical philosophical and linguistic issues this involves, including the distinction between meaning and collateral belief, see my post of 6/17/14, “A Textualist Approach to Legal Interpretation.”

What about knowledge beyond the linguistic? If vagueness or ambiguity remains after the statute is read as a whole, may a textualist make use of information about the state of the world beyond what must be known for anyone to qualify as a fluent speaker of the language? 

For example, in interpreting the legislation setting up the Works Progress Administration, could a textualist properly have drawn upon information concerning the then existing unemployment rate and its social consequences? In interpreting the ACA may the textualist cite, as the professors do, the fact, based on empirically based economic theory, that the ACA system would collapse on the petitioners' interpretation?

A purposivist might argue that this information should be unavailable to the textualist because its relevance to the statute could only be its influence upon Congress and the President. To use it, then, would be to engage in purposivism while pretending to textualism.

In the case of the WPA, the unemployment rate, however, was no state secret. The general public had some considerable understanding of these large scale social, “downstream” facts. 

The economics of health insurance are a little more abstruse, but are generally available. The professors' brief emphasizes that the understanding that the markets would collapse without the subsidies was undisputed by the litigants. Legislators wrote the statutes with these realities in mind, but those of us who were only governed by the law, would also have some idea of them, if we took the trouble to understand the statute even roughly.

The citizen interpreting some point of vagueness or ambiguity in a statute properly looks to the purpose of the statute in light of the social facts that were, like the ability to speak the language, the common property of most of the population. At least, that is what they will and should do if the interpretive problem under consideration is not resolved by applying their more purely linguistic abilities to the statute as a whole. Again, nothing particular to the legislators is determinative, as the purposivists contend.

It follows that the difficulty of drawing a line between meaning and collateral belief is less of an objection for textualism, rightly understood, than it might initially appear. Some collateral beliefs, in particular those widely shared beliefs that are so hard to distinguish from meaning should be taken into account by a textualist if they are needed to interpret a vagueness or ambiguity in the text. It is a continuity in interpretive method reflecting the continuity of gradations from “core meaning” to “collateral belief.”

Some further examples may make this clearer. Suppose that in state A the alcohol tax bill originated a few days after a widely publicized report of a dramatic increase in drunk driving. In state B a nearly identical tax followed closely upon the release of expenditure and revenue projections showing that B would in the next fiscal year run afoul of the state's constitutional balanced budget requirement. In A' it was the death of the daughter of the speaker of the assembly at the hands of a drunk driver that preceded the origination of the alcohol tax bill, and in B', which has no balanced budget clause in its constitution, there was, nonetheless, a widely supported and publicized campaign by a fiscal responsibility group demanding that B's budget be brought into balance. In each case there is an ambiguity that would be resolved one way or the other depending upon whether we see the purpose of the act as the production of revenue or the discouragement of insobriety.

The speaker's family tragedy in A' and the lobbying activities in B' should be excluded from textualist interpretation. The only way they enter the statutory story, or at least the dominant way, is through their effect on the legislators. That effect might well have been the same even if the relation of alcohol to the death of the speaker's daughter had never become public or if the budgetary lobbyists had operated with lowest visibility. It is a root textualist principle, anchored in concerns of democratic legitimacy, that the private intentions of legislators, not having been enacted, should play no role in statutory interpretation.

The statutes in A and B represent a more difficult intermediate case. The facts at issue are not private to the legislators, but neither would they likely be so generally known as was the unemployment crisis behind the WPA or the scandal of medical non-coverage addressed by the ACA. I think it is a matter of how widely the general population, or those in the general population who pay attention to legislation, would understand the statute in light of the particular facts at issue. Are the facts more nearly like those engendering the WPA, on the minds of nearly everyone, or is the public awareness of them and their relevance to the statute very limited, as might be some secret or nearly secret lobbying activity? 

Of course, there is going to be some arbitrary line drawing in separating what is part of the “purpose of the statute” and available to the textualist, and what is only the purpose of the legislators, and so grist for purposivist but not textualist mills. 

Arbitrary lines are inevitable in law. The crucial point is that there are some facts about intentions and purposes that are clearly inappropriate for textualist interpretations. This is enough to establish that textualism, at this point, is neither incoherent nor a disguised form of purposivism.

Textualism, Democratic Legitimacy, and the General Will

The professors suggest a political theory justification for textualism, although without fully spelling it out. It is the text of the statute that is democratically enacted in accordance with the separation of powers and that is due deference from judges. The intentions or preferences of the legislators, insofar as they vary from the text, are not enacted, however carefully their aids crafted the committee report and with whatever intent to influence judicial interpretation of the statute.

Enactment, however, is nothing more than a formal, often a ceremonial, event. It is those democratic processes leading up to enactment that are at the root of the value in this political theory. The professors, or at least some of them, would put more emphasis on the separation of powers and bicameralism than I would, my own theory being, perhaps, more radically democratic than theirs. Whether bicameralism and equal representation in the Senate enhance or degrade democracy, however, the point of enactment is that it is the outcome of a democratic process.

To explore how democratic political theory may affect textualism, I want now to indulge in a fairly elaborate thought experiment. Imagine a variation on the King litigation in which the ACA would be different from what it actually is by adding a few dozen words to Section 1401 (a), in particular to its amendment by addition of Section 36(B) to Subpart C of part IV of subchapter A of chapter 1 of the Internal Revenue Code of 1986.

The words on which the petitioners’ base their case are:

‘‘(2) PREMIUM ASSISTANCE AMOUNT.—The premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of— ‘‘(A) the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act, or . . ."

(emphasis added)

In our imaginary statute we will enlarge this addition to the IRS Code on the details of the calculation of the monthly assistance amount with the following language. (It wouldn’t be the sort of thing that a code drafter would put as a new subsection (3), but let us pass that.)

“Otherwise eligible persons in states with exchanges operated by the federal government shall receive no subsidy. Only persons in states with exchanges that were established and operated by the state government and its employees or directly controlled agents will be eligible for subsidies.”

You may wonder how language that would so obviously undermine the ACA could conceivably be inserted into the act in such dramatic terms. Just exercise your philosophical imagination, assuaging your intellectual conscience with the observation that it's a large and complex statute. Perhaps no one with any acumen, except a few secret enemies of the act, ever noticed that this poison provision had been slipped in.

In any event, the discussion and the legislative history of this imaginary bill we will imagine to have been exactly like that of the real world ACA. No one's vote, either way, was affected by the poison provision. The entire understanding of the law, congressional and public, took place as if no one were aware of this provision of the statutory text.

In this imaginary world, most textualists, I among them, would have to say that the petitioners win, at least putting aside constitutional arguments. There would be, to be sure, enormous internal tensions within the act. Section 1331(b)(1), in particular, comes, at least, very close to defining all exchanges as “established by the State” for the purposes of the Act. Still, more specific language takes precedence, and our imagined version of the language of the amendment to 36(B) could not be any more specific.

A few hardy quasi-textualist souls might yet say that the now entirely unequivocal provision should be “interpreted” out of existence because of its fundamental conflict with the purpose of the rest of the legislation. Yet that would be to leave the actual text behind in favor of an idealization of the text. Real statutes, unfortunately, can have deep internal conflicts, even to the point of being self-undermining.

The quasi-textualists could reply that in this imaginary case the will of the people, at least as transmitted through Congress, would be defeated by a strict textualist interpretation. The policy that everyone thought was being passed, was not, in fact enacted – on a textualist interpretation of what was enacted. If textualism is rooted in democratic legitimacy, how is this tolerable? Mustn't textualism compromise towards purposivism to retain its political theory justification? It would not be the secret purposes of drafters or legislators that would determine interpretation, of course, but some broader “public purpose,” corresponding roughly to the traditional notion of the “general will.”

In evaluating this proposed compromise in which the compelling notion of the general will pulls us towards an infusion of purposivism into our method of interpretation, what, if anything, exerts any force in the opposite direction – towards the specifics of the text?

I said earlier that enactment is important primarily because of the democratic process leading up to it. Enactment's not insignificant secondary importance lies in the “legality” complex of concepts. There is a considerable advantage in the public availability, transparency, and stability of law. It is a good thing when lawyers can give confident answers, without a lot of billable hours, to their clients’ questions: “Can I legally do x?” “Will I be eligible for y?” It is even better when the clients can easily find such answers themselves. A dictator who publishes clearly written, publicly available decrees with reasonable life spans is less of an evil, other things equal, than one whose decrees are unavailable, vague, and ephemeral. (See generally Lon Fuller,"The Morality of Law," especially the King Rex parable.)

Texts are better for the purposes of legality than is the public will as found in the intentions of legislators or the public pulse. There are no disputes as to what the words are, even if there are sometimes serious disputes as to what they mean. The general will behind a statute is sometimes pretty clear, but the possibilities for disputes arising and the difficulties of resolving them when they do arise are very great.

It is in large part because of the difficulty of assessing in an accurate and unbiased manner what the general will is or was that democrats have always tended to want to proceduralize the whole business through various kinds of voting – voting directly upon issues or for voting for representatives who vote upon issues. At the heart of almost all such mechanisms is the reduction of the issues to proposals expressed in text.

Many of us believe that these text-centered democratic processes not only serve the purposes of legality, but are also the best, or at least a very good, means, in a large and complex society, of making effective the value of individuals’ having a say on matters of public policy that affect them. If we too easily leave the text behind, we risk sacrificing democratic values as well as those of legality.

In some especially dramatic cases, as in our imaginary case where everyone thought the statute did one thing, but the text said something else, putting the troublesome part of the text aside might, short term, better serve the values behind democracy. If the troublesome text is early found and authoritatively interpreted away by judges sensitive to the general understanding, then the direct damage to legality will be relatively small as well.

If the issue is not litigated until many years later, however, the interpretation of the law by the conscientious lawyer will be difficult in the interim. When judges finally do turn to the statute, their appreciation of the general understanding at the time of its enactment may be affected by the loss of information and the bias of historical sources. It is also very likely to be colored by the judges' own ideological filters. Determining the meaning of the text is, of course, not free from these sorts of difficulties and distortions, but determining the general understanding that existed at the time of enactment is much harder.

In addition, there is considerable long run benefit, for democracy as well as legality, in disciplining legislators by taking the text they enact seriously, rather than letting them assume that a judicial rescue will always be available for bad draftsmanship. Discipline often requires short run negatives.

Text and Context

The D.C. Court of Appeals in, the now vacated opinion, Halbig v. Burwell, held that the “plain meaning” of “Exchange established by the State” precludes the IRS from authorizing credits for insurance purchased on a Federal exchange. It argued that this plain meaning must control because it did not produce “absurd” results in the statute as a whole.

The professors' brief argues that this is the wrong way for a textualist to proceed. Instead of looking at a provision in isolation for its “plain meaning,” we should always assess the meaning of a provision in light of the whole statute.

Congruence with the statute as a whole is not a posterior test, calibrated by an absurdity standard, but part and parcel of the initial determination of meaning.

It might be objected that there is a vicious circularity in the professors' position here. To read the whole statute we have to read and discern the meaning of each provision, but if we cannot know the meaning of any provision without knowing already the meaning of all the provisions together, then the enterprise falls into self-contradiction.

This objection is easily dispatched. The statute could be read assigning each clause a provisional meaning, then adjusting the interpretation of each provision in a second stage, after the overall purpose of the statute has become clear.

A better way of seeing the process, however, is based upon the recognition that statutes, like almost all text documents, are to be read starting at its first sentence and then proceeding sequentially – unless instructed in a provision reached sequentially to refer elsewhere, perhaps to a definition section, or appended data. Inevitably we start with “plain meaning” in the first provisions, but the way we read subsequent provisions is and should be affected by our emerging understanding of the statute as we go. In the light of that understanding, we may adjust our initial reading of the early provisions. By the time we would get to the disputed provisions in Section 1401(a) the ACA, we would already have excellent reasons not to be satisfied with the meaning of “established by the State” that we might have ascribed to those words if we met them on the street.

Pulling a provision out of the middle of a statute and asking for its meaning is an artificiality of litigation. In advising a client, the lawyer may go to a statutory provision that seems from a contents table or word search most applicable to the client's circumstances, but she will give, at most, a tentative report until she is confident she understands that provision in the context of the entire statute.

Conclusion

I conclude that the theory of textualism as set out and applied in the professors’ brief survives objections that textualism can be nothing more than disguised purposivism, that it strays too far away from it democratic roots, and that its holistic approach to specific provision interpretation is viciously circular. There is much more to be said about both the theory and practice of textualism, but the professors had it pretty much right on both so far as they went.