Friday, March 27, 2015

Gridlock and Purposivism in Statutory Interpretation

by Michael Dorf

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.

14 comments:

Unknown said...

The problem I have with the four avenues listed is three require the statute be unclear, which it is not, and the remaining relies on the intent of the congress rather than what was actually passed. A healthier respect for co-equal branches would be to tell that branch, "You messed up, yes. We will not fix the problem. You must learn to get things right before enactment. Lives are stake and, therefore, the utmost care and responsibility is required."

Joe said...

A healthy respect is to examine the statute & use normal rules of interpretation. This would provide us -- as noted by others here and elsewhere -- with the understanding of the Administration. This matches text and intent.

I understand U. disagrees there. But, I think a more reasonable approach is to suggest there is some reason for debate over the language. This would show the value of relying on context etc. And, it would provide room for constitutional avoidance of problematic federalism results if the challengers' position wins out.

Or, we can take the minority few that the text clearly goes the way of the challengers. Of the three moves, especially as a matter of splitting differences between a multimember court, this seems far from compelling. It is a sort of distant third not shown by the facts.

Eric Segall said...

Unknown,, the ACA nowhere says subsidies are not available on fed exchanges or are "only" available on state exchanges. You keep saying it says those things but it just doesn't.

Unknown said...

I'm just not sure how to take "established by the State under [section] 1311" any differently than what it says on the proverbial tin.

David Ziff said...

In terms of respecting Congress, I think it's worth noting what Justice Kennedy was talking about when he said "Well, if this is wrong, the Congress will fix it." The "this" and the "it" in that sentence are (I'm pretty sure) referring to the Court's decision, not the statute itself. There's a judicial humility there---an acknowledgement that the Court might make a mistake in interpreting a statute and that Congress may then have to "fix" the Court's decision with a legislative overruling of sorts. If the statement relates to anything, it seems to relate more to comparative stare decisis between legislative and constitutional precedents.

But that's very different from the Court saying to Congress that Congress passed a statute that was itself broken before the Court had any involvement, and then refusing to provide a "fix." In that case, the question becomes whether it's better to assume that Congress would pass a broken statute or interpret the statute in a way that presumes it is not broken. That seems slightly different than the point Kennedy was making.

Lowry said...

@Unknown: just to eyeball it because this has been repeated so many other places: "State" is capitalized (which encompasses "all government in "the State"), and it refers to 1311 which refers to 1321 which says state or federal exchanges.

Also, yes, but lives are only at stake from the 7 million people who will lose their health insurance, several of whom will die, if Obamacare is repealed in this case, and the thousands more who will certainly die when the rest of it collapses shortly thereafter. Lives are indeed at stake.

And on the other side of that you would prefer to balance the Supreme Court dictating to Congress they way in which they must draft statutes rather than interpreting them in good faith...and that's better? Congress is not going to change the way they draft statutes, they will finish at the last second with the most important players with the biggest requested changes swooping in at the last moment and things will barely pass if they pass at all and they will be flawed. That's not going to change. The Court will never change that, should not seek to change that, and only declares that it does when it wants to reach a political result contrary to the purpose behind a statute, which here could not have been clearer.

@David Ziff, if that is Kennedy's point then even if he is saying they have to live in a fantasy world where Congress functions, it is disingenuous to suggest that a different Congress would want to effect the purposes of the statute or that the original Congress's action is less legitimate in any way for there having been a change in political winds. Otherwise, every few years any law passed by a transitory majority can be undone by the Supercongress of the Supreme Court.

Greg said...

@Lowry I would take what David Ziff said a little differently.

I think he's saying that if we assume congress made a sensible law and make the most reasonable decision based on what congress meant, congress can fix it if the court gets it wrong. This isn't the same as saying that the court should intentionally make bad or unreasonable decisions and expect congress to get them out of it.

Suppose I am a moderate republican. I don't like the ACA, but at the same time respect the rule of law and the prior court ruling validating it. As such, I am going to try to interpret the statute "correctly" and not according to my own personal opinion.

Now suppose I'm ruling on King v. Burwell. I might be convinced by any of the arguments proposed by Mr. Dorf that, despite my personal political leanings, the most correct way to interpret the statute is to allow subsidies.

If I respect congress and am unwilling to take gridlock into account, I interpret the statute as best I can and respect that if congress really meant to not allow subsidies, then congress, ESPECIALLY this congress, will update the law to invalidate the court's statutory interpretation.

If I don't respect congress and AM willing to take gridlock into account, then I would be tempted to rule based purely on my political leanings because congress will be unable to resolve what I consider poor policy results from what I believe to be the correct legal interpretation.

Kennedy is right that justices should not act as though they must heavily weigh policy matters because congress will be unable to resolve a legal interpretation that produces what the justice considers a bad policy result.

Joe said...

"Kennedy is right that justices should not act as though they must heavily weigh policy matters because congress will be unable to resolve a legal interpretation that produces what the justice considers a bad policy result."

I don't think judicial decision-making should be overly skewered b such things. But, it still is appropriate to be realistic about how the legislative process works. The system is set up to encourage bottlenecks -- there are repeated veto points there and this might be worse these days, but it's inherent. It's how it's supposed to work.

So, judges should be somewhat careful and not blithely wash their hands of things since "hey the legislature can just fix it, it being a statutory matter." And, it is not wrong to be a bit more wary here when something really serious is at issue.

How far to go with this -- is Breyer's approach as covered in his book appropriate, e.g. -- is debatable. But, it's something that would matter along the margins, at least.

John Q. Barrett said...

Did law student AMK take Legal Process from Hart or Sacks? Are there Judge or Justice AMK opinions that explicitly rely on or seem influenced by Legal Process thinking?

Helvidius said...

@Lowry
You are wholly incorrect.

'State' is a term defined in the act to mean the 50 states and the District of Columbia. 'State' does not mean 'all government'.

Further, Section 1311 makes no reference to 1321, and the only use of the word 'federal' in 1311 relates to the federal government providing funds to assist a state in establishing its exchange IF it elects to establish one.

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