On Monday, Justice Kennedy sent the blawgosphere into a bit of a tizzy when, in the course of testifying before the House Appropriations Committee, he answered a question about statutory interpretation by saying the following:
We routinely decide cases involving federal statutes and we say, "Well, if this is wrong, the Congress will fix it." But then we hear that Congress can’t pass a bill one way or the other. That there is gridlock. Some people say that should affect the way we interpret the statutes . . . . That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of . . . government that are committed to proceed in good faith and with good will toward one another to resolve the problems of this republic.That statement was tizzy-inducing because it can be read as bearing on King v. Burwell, in particular, to an exchange between Justice Scalia and Solicitor General Verrilli. In response to the suggestion by Justice Scalia that Congress can always fix the ACA if it turns out that reading it to make subsidies unavailable on federal exchanges, SG Verrilli expressed extreme skepticism that "this Congress" would do so. Justice Scalia, either feigning or displaying ingenuousness, then indicated that any Congress would fix a serious problem. Justice Kennedy may not have been referring to King but if he was, that looks like bad news for the Obama Administration.
To be sure, as I have previously noted, there are at least four ways to get to a government win--none of which requires making any assumptions at all about gridlock. The Court could find that: (1) based on the overall language and context, the ACA as a whole is best read to allow subsidies; (2) the statute is unclear but the Administration gets Chevron deference; (3) the statute is unclear and thus fails the clear statement requirement for conditional spending under South Dakota v. Dole; or (4) the statute is unclear and thus the canon of constitutional avoidance should be invoked to prevent a construction that would potentially violate the constitutional limits on conditional pre-emption. None of these paths depends at all on any view about the consequences of gridlock for statutory interpretation.
Moreover, even if the Court were to give some weight to the fact of gridlock in construing unclear statutes, such a consideration would not likely be more powerful than considerations (2), (3), and (4) listed above. And for that reason neither the government nor its amici affirmatively invoked gridlock as a reason why the Court ought to rule for the government. Put differently, Justice Kennedy might think that gridlock is an insufficient basis for ruling for the government but that one of the other grounds is sufficient.
But even if not, it's worth noting that the view underlying Justice Kennedy's statement actually supports a win for the government in King. Assuming that Congress is well functioning and committed in good faith and with good will to solve problems is practically the credo of purposivist statutory interpretation. As Hart & Sacks famously put the point in the 1950s (with the sexist language of the era): "The statute ought always to be presumed to be the work of reasonable men pursuing reasonable purposes reasonably, unless the contrary is made unmistakably to appear."
As an aside, it's worth noting that although this language is frequently quoted as reflecting the views of Hart & Sacks, it appears in a list of propositions about statutory interpretation, with the entire list prefaced by the following question for the reader: "Are the following conclusions well founded?" But I pass over the point here because I'm less interested in elaborating the views of Hart & Sacks than in describing purposivism.
The crucial point is that someone who assumes that Congress was acting reasonably would look at the ACA as a whole and would find therein no unmistakeable evidence that Congress wanted to send state private health insurance markets into a death spiral. Thus, to the extent that Justice Kennedy was articulating a general philosophy of statutory interpretation, it's one that supports the government's position.
But suppose that Justice Kennedy concludes either that the statute unmistakably requires the unreasonable conclusion that there are no subsidies on federal exchanges or that he thinks that such a result is not in fact unreasonable. What about his further claim that the Court ought not take account of gridlock? To put the question as provocatively as I can: If the Court is willing to assume, sometimes counterfactually, that Congress was acting reasonably when the Justices try to make sense out of the statutes Congress enacted, why shouldn't the Court also assume, sometimes counterfactually, that Congress will act reasonably by enacting new legislation to correct any problems created by a judicial interpretation of the existing law?
The answer, I think, is that the counterfactuals are of a different character. Assuming that Congress consists of reasonable people when it in fact includes a considerable number of maniacs is a way for the Court to show respect for a coordinate branch and thus for the democratic process. By contrast, one need not assume away gridlock in order to show respect for Congress because gridlock is a structural feature of our constitutional system, rather than simply a product of bad faith and partisan hackery. As I discussed in my column and post on Wednesday, gridlock is a consequence of having multiple "veto players" who can block legislation.
Thus, one can make respectfully counterfactual assumptions with respect to Congress and still take account of gridlock.
Let me elaborate by juxtaposing two possibilities. An honest opinion along the lines Justice Kennedy may have been hinting at might go like this: The plain meaning of the ACA appears to make subsidies unavailable on federally-established exchanges but that could be calamitous for many states. Nor can we rely on Congress to correct the calamity because Congress is controlled by Republican ideologues who would rather see millions of people lose their health insurance than improve a law that they associate with a Democratic president who they (and/or much of their core constituency) regard as a socialist-atheist-Muslim-dictator-traitor. Thus, we must creatively construe the ACA to protect the country against a calamity that our crazy, craven Congress would welcome.
One can see how such an opinion would be less than fully respectful of a coordinate branch. However, it would also be possible to write the opinion in the following, more respectful way: The plain meaning of the ACA appears to make subsidies unavailable on federally-established exchanges but that could be calamitous for many states. Nor can we rely on Congress to correct the calamity because the Constitution, by deliberate design, makes lawmaking difficult, and there are deep divisions among elected officials that render it unlikely that a coalition would emerge for a legislative fix. Thus, we must construe the ACA according to the reasonableness assumption in order to preserve and protect the output of the arduous lawmaking process.