Thursday, June 25, 2015

Justice Scalia's King v Burwell Dissent Degrades His Textualist "Brand"

by Michael Dorf

The opinion of Chief Justice Roberts in King v. Burwell proceeds concisely and persuasively via the following steps: (1) Read in isolation, the most natural reading of "an Exchange established by the State" as used in Section 36B of the Internal Revenue Code's provision governing the size of tax credits available for the purchase of health insurance would make such credits unavailable for individuals purchasing insurance through the federal exchange in those states that did not create their own exchanges; (2) however, statutory code sections should not be read in isolation, and given other provisions of the Affordable Care Act as well as its overall design, the language is ambiguous; and (3) accordingly, to implement rather than frustrate the manifest purpose of the law, in this provision (though not necessarily in others) "by the State" means "by the State or by the federal government acting in place of the State."

Before discussing the dissent, I'll note two very important features of the majority opinion. First, it does not in any way rely on constitutionally-driven presumptions of the sort I described in the aftermath of the oral argument (e.g., here). It does not say that reading Section 36B as the dissent does would amount to impermissible coercion under either the limits of the Spending Clause or the anti-commandeering doctrine.

Second, CJ Roberts expressly rejects the option of Chevron deference. He says, quite sensibly, that this particular ambiguity in the ACA cannot sensibly be read as a delegation to the IRS to fill in the gap. That seems plainly right and it's also important because it means that the IRS under a Republican president could not simply reverse course and decide that refundable tax credits for the purchase of health insurance are not available on federal exchanges (although, of course, a Republican president with a Republican Congress could amend or repeal the ACA).

As for Justice Scalia's dissent (joined by Justices Thomas and Alito), it seems to me either a rejection of his textualist philosophy or, if taken as exemplary of that philosophy, an indictment thereof. In his academic writings and in many of his opinions, Justice Scalia has been at pains to distinguish what he calls textualism from literalism or strict constructionism. For example, in the lead essay in A Matter of Interpretation, Justice Scalia writes (at p. 23) that "[t]extualism should not be confused with so-called strict constructionism, a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be . . . ." He says on the next page that "the good textualist is not a literalist . . . ."

Justice Scalia's King dissent pays lip service to the distinction between literalism and textualism. For example, he says that he "agree[s] with the Court that sound interpretation requires paying attention to the whole law, not homing in on isolated words or even isolated sections. Context always matters." And yet, throughout the dissent Justice Scalia gives no weight at all to the context that matters most: what Congress was trying to accomplish through the central provisions of the ACA and with the backup provision by which the federal government creates exchanges when states don't. To use an elegant turn of phrase by Justice Scalia from a case that CJ Roberts relies on in King, the King dissent finds that Congress has hidden an elephant in a mousehole.

The King dissent reads like literalism in one obvious sense. Justice Scalia repeatedly exclaims that "State" can only possibly mean "State but not federal" rather than "State or federal," festooning his increasingly adamant insistence with colorful adjectives for the majority's position ("absurd"; "impossible"; "shame[less]"; etc). But as in the four-Justice dissent in NFIB v. Sebelius, where the same lineup plus Justice Kennedy repeatedly insisted that a payment Congress labeled a "penalty" could not possibly be a tax for constitutional purposes even though CJ Roberts patiently explained why a provision that functions as a tax is a tax regardless of labels, so too in King, Justice Scalia's adamance that "State" cannot possibly mean "State or federal" leads anyone who does not share his commitment to the destruction of the ACA to ask "why not?".

What about context? Justice Scalia makes two moves to render his disregard of the broad context irrelevant. First, he thinks the meaning of "State" so darn obvious that there is no need to look at context--even though most of the judges to have examined the question think that it's at least unclear. Second, when he looks at context arguendo he looks mostly at linguistic context, describing how "established by the State" in other parts of the statute does appear to draw a distinction between states and the federal government. CJ Roberts responds that a single phrase can mean different things in different places in the same statute but Justice Scalia basically dismisses the point.

Only at one point in his dissent does Justice Scalia address the central question that has dogged the plaintiffs ever since they dreamed up this improbable case: Why would Congress have possibly meant to exclude subsidies on federal Exchanges? Justice Scalia's answer tracks the answer that the concocters of the lawsuit concocted: It's an incentive scheme to induce the states to create their own exchanges.

As CJ Roberts shows (and as numerous others have shown), that reading of this tiny elephant trapped in her mousehole makes a hash of the statute as a whole, but there is another problem with it, and one which even non-degraded textualism exacerbates: Before the ACA's enemies settled on Section 36B as the latest means of attempting to kill the law, nobody breathed a whisper of this supposed incentive mechanism. But that's not a problem for the dissenters, because the complete post-hoc-ness of the challenge can be dismissed as relying on legislative history--and even undegraded textualism abjures legislative history.

The core of the textualist argument against legislative history is that committee reports, floor statements, and the like are not reliable indicators of legislative intent. If one agrees, that's a fair reason to discount evidence in such materials, but it's not a reason to discount the absence of evidence for some position that has a very dramatic effect on the meaning of a law. Especially now that members of Congress and their staff go to great length to stuff support for whatever position they favor into the legislative history, if anybody in Congress thought that the ACA barred subsidies on federal exchanges and did so for the purpose of incentivizing the states to create their own, then surely one would expect to find something somewhere in the pre-enactment record to that effect. And yet there's nothing. With respect to legislative history of this sort, absence of evidence is evidence of absence.

To be sure, Justice Scalia believes he has another reason to disregard legislative history, even if reliable. Such history aims at uncovering legislative intent, but textualists say that unenacted intent is not law, and so courts should only look to construe the words that were enacted. Fair enough, but suppose that, in context, the meaning of the words is not pellucid. At that point, even Justice Scalia advocates construing texts "reasonably." And so the question arises: as between a construction of the statute that enables federal exchanges to function as backups in states that don't create their own (the majority approach) and a construction in which the ACA's other provisions will likely lead to the destruction of the individual health insurance market in states that don't create exchanges, which is more reasonable?

Justice Brennan once described originalism as "arrogance cloaked as humility." Textualism--at least as practiced by the King dissenters--is vulnerable to the same charge. It is supposed to constrain judges to implement the will of the legislature rather than their own. Textualism fails in that purpose, at least if one can regard King as an example of textualism. Justice Scalia accuses CJ Roberts of adopting special rules of interpretation in order to salvage the ACA. A psychologist might say that he is projecting in order to cover his adoption of special rules in an attempt to kill it.


tjchiang said...

I agree with most of your description, but do not see how the conclusion follows. As you say, one point of latent disagreement between textualists and non-textualists is what kinds of "context" count. Everyone subscribes to the mantra that "context matters," but underneath the hood textualists think that, by and large, the only valid kind of context is linguistic context while non-textualists think that many other kinds of context are valid. When textualists say that they are not literalists, they mean it in a much thinner sense (the doctor saying to an emergency room patient "you are not going to die" is not promising eternal life sense) than non-textualists take them for.

You then move on to say that Justice Scalia never addresses the question of why Congress would have excluded subsidies from Federal exchanges, except by rehashing the answer that it provides an incentive for states to create exchanges. You find this answer unconvincing because there is not a shred of actual evidence that this Congress in fact sought to create such an incentive mechanism. You note that Justice Scalia has written that, when a law is not perfectly clear, the text should be construed "reasonably." And you then conclude that the more reasonable construction is one that permits subsidies on federal exchanges (as an aside, I think Scalia would protest that he meant "linguistically reasonably" rather than "reasonably desirable as a policy matter," and so he would contest your implicit belief as to the more "reasonable" construction).

But, more importantly, where is your predicate? I.e., at what point does Justice Scalia's methodology require him to conclude that the law is not perfectly clear? As I read his argument, his point is that, as a matter of linguistic context, the law is perfectly clear. The fact that this particular Congress clearly did not intend it as such does not show ambiguity because that is not the kind of linguistic context that counts to Justice Scalia (I think textualists would find an argument that no sane Congress could possibly have intended a result to count, but not an argument that this particular Congress did not intend the result). You can say that relying only on this thin version of linguistic context is a cramped, undesirable interpretative methodology, but at that point it is simply rehashing the textualist versus non-textualist debate writ large, rather than some searing indictment that you seem to view it as.

Shag from Brookline said...

The decision in King v. Burwell indicates that "SCOTUS CARES (6-3)" whereas for the dissent the headline should be "SCALIA SCARES."

Publius the Clown said...

I agree with tjchiang. The context that Scalia discusses is overwhelmingly context from the rest of the law, not from external sources. His view seems to be that you stay within the four corners of the law when interpreting it, to the extent possible.

I also think that a key part of Scalia's dissent comes when discussing how context plays a role; he says that "[o]rdinary connotation does not always prevail, but the more unnatural the proposed interpretation of a law, the more compelling the contextual evidence must be to show that it is correct." In other words, where the text of the provision, and its meaning, are so clear, you've got to have an extraordinarily good reason to override them.

I'd add that the main counter-argument--namely, that the overall purpose of the ACA is reason enough to override the plain language--is troublesome. Statutes often pursue their goals in qualified, rather than absolute, ways, so that some provisions go against the overall purpose of the statutory scheme. Courts shouldn't start overriding plain statutory language whenever it's deemed to contravene that purpose.

And Scalia's argument that the plain language of Section 36B could serve as an incentive to states to set up their own exchanges arguably saves the language from being absurd. (Assuming it would be absurd otherwise, which doesn't necessarily follow--see my comment about statutes pursuing goals in qualified ways.) In response to your comments about the absence of evidence in the legislative record, a textualist might respond that textual analysis here proceeds like rational basis analysis: the question is whether any legislature could have had a good reason to write this text as it did, not whether this particular legislature did. That keeps the absurdity analysis focused on the statutory text, rather than on congressional intent.

To be clear, I think this is a difficult case, and I'm not sure where I come out. I also think that statutory construction is a messy business, with so many somewhat-conflicting canons of construction and no clear hierarchy that ranks their importance. But Scalia's argument--that only exchanges established by the State (a defined statutory term that excludes HHS, as Scalia notes) are exchanges established by the State--is powerful. (Less clear to me is how Scalia's dissent is consistent with Brown & Williamson, which the King Court relies on, and which Scalia joined.) But I strongly disagree that Scalia's opinion is so clearly wrong and/or non-textualist as to be an indictment of his textualism.

Publius the Clown said...

Just realized that I echoed tjchiang in my argument comparing Scalia's textualism to rational basis analysis, so again, I agree with him.

Greg said...

What really annoyed me about the Scalia dissent was the tone. While NFIB v. Sebelius might have warranted the claim that the court would do anything to save the ACA, I really don't think that's the case here. And accusing a 6-judge majority of being that blatantly partisan (especially considering that Kennedy sided with the dissent in 2012) seems pretty disingenuous. As best I can tell, you could strip out all the talk about the talk about broad legislative intent from the majority opinion in King and they would still come to the same conclusion, so this isn't the clear-cut case of ignoring obvious text that Scalia is trying to pretend that it is.

He harms his reputation (and that of the court as a whole) by leveling these kinds of accusations at his colleagues.

Unknown said...

I was under the impression J. Scalia's objection to the court's definition of "state" was the fact it differs from the one provided in the statute.

Plus, I still recall then-Senator Baucus talking in 2009 about how the states were going to have to establish exchanges if the Citizens were to get subsidies. I remember it vividly but don't seem able to find the clip online.

Sam Rickless said...

I haven't read Justice Scalia's dissent, but I agree broadly with tjchiang and Publius the Clown. "Context", for a textualist, means "linguistic context", not "context of the law's framing, including the intentions of the framers".

But I think there is more to this case than a debate between consistent intentionalists and consistent textualists. One issue is whether "established by the State" is ambiguous. Sometimes "ambiguous" is used in a very broad sense, as meaning something like "unclear in its application". In this broad sense, vague statutes are ambiguous. But "ambiguous" is more normally used in a narrower sense, as meaning "having two meanings". Examples: "bank", "rare", and so on. In the narrow sense of "ambiguous", the phrase "established by the State", whether read in isolation or in the context of the entire statute, is not ambiguous. About this, Justice Scalia is right.

But, even by textualist lights, this shouldn't settle the issue of how to apply the relevant provision. For it can happen that extremely clear and unambiguous language, if read as having its plain meaning, has a seriously problematic impact on other parts of the same statute. Such an impact might be the creation of contradiction (absurdity) or inapplicability. When this happens, textualists can't just rest with the plain meaning of the provision. They have to decide which is more important: plain meaning or the avoidance of absurdity/inapplicability. Much of what the majority argues could be recast as the claim that even though "established by the state" is clear and unambiguous, it is more important to avoid absurdity/inapplicability than it is to give effect to the phrase's plain meaning. Such an argument would be consistent with textualism, and Justice Scalia should, in defense of his opinion, explain why this particular textualist argument fails. I would think that there is nothing obvious about this. According to Justice Scalia, statutory construction is a matter of applying a variety of different rules of thumb called "canons", and, as Justice Scalia explicitly recognizes, different canons ("give effect to plain meaning", "avoid absurdity", etc.) sometimes come into conflict. When this happens, Justice Scalia does not offer any mechanical procedures for deciding which of various conflicting canons wins. As he sees it, this is where judicial discretion has a role to play in statutory interpretation, always with an eye to interpreting the statute as having the meaning that a reasonable reader would take it to have. I will have to read the dissent to see whether Justice Scalia addresses this issue.

Joe said...

There is a post at Balkinization that is short enough to basically post:

"This is simply to record my view that, contrary to the seemingly widespread view that Justice Scalia is a splendid stylist, his snarkiness is getting tired. (And, as pointed out here, it's not obviously to his benefit. When he asked at the oral arguments in the marriage-equality cases exactly when did the Constitution make marriage equality mandatory, I thought the right answer was, "Why, on June 26, 2003, when you said in your dissent in Lawrence v. Texas that that decision necessarily implied that laws against same-sex marriage were unconstitutional."

This basically seconds a comment. I didn't think this was a "difficult" case myself but don't know how much Scalia corrupts his brand. I do think at times he simply is blind to how his words don't fit his claimed principles. People take this as being hypocritical but it happens. I don't know how bad this dissent is. On some level, it is not really what I'm worrying about at the moment. This realizing a neutral concern about justices being consistent to their principles is valid.

Shag from Brookline said...

This in Sam's comment:

" ... always with an eye to interpreting the statute as having the meaning that a reasonable reader would take it to have."

got me to think about a reasonable reader reading the entire approximately 1,000 pages of ACA. I've had difficulty swallowing the fictional reasonable person standard particularly in tort law, and think that such a reasonable reader might be a tad more elusive. There are dueling canons and they can be deafening at times. The Chief discussed some canons, including some used by Scalia in recent years, particularly in dissents. Joe references concerns with justices being consistent to their principles. Perhaps a comparative of the Chief's canons and those of Scalia in King might reveal who had the greater firepower - and consistency. King is not a Bush v. Gore decision.

Michael C. Dorf said...

Three quick thoughts and then I'll subside (but continue to follow the discussion w/ interest):

1) Joe, re spam: The new approach has worked extremely well overall. I get alerts about ALL new comments more than two days after the post. If they are spam, I simply block them. The reason a few slip through is that sometimes spambots get lucky and get a few comments in before the two-day window closes.

2) TJ: If we are agreed that bona fide textualism pays attention to linguistic context but not to broader context, then that seems to me to counsel strongly against textualism for familiar reasons. Hart & Sacks (who were consummate purposivists, not textualists but also not subjective intentionalists) said that the judge should assume that the legislature consists of reasonable people pursuing reasonable ends reasonably. Reasonable people do not create federal exchanges that serve no purpose other than to blow up a state's private insurance market. If a textualist cannot look at a broad enough context to realize that, then the textualist's linguistic contextualistm is unreasonable.

3) Sam: The thrust of what you say makes much sense but Justice Scalia has sometimes indicated that he thinks there is no place in statutory interpretation for an absurdity doctrine.

matt30 said...

Professor Dorf is right. Even if Scalia just looks to linguistic context, which he doesn't limit himself to in other cases, the linguistic context of ACA isn't determinative either. The "such" language in 42 USC 18041 is one example, but the definitional section that declares all exchanges to be 42 USC 18031 exchanges is another. Yet another is the fact that an HHS exchange, under a literal reading, would have no plans and no qualified individuals. Still another is the fact that "exchange", "exchange established by the state," "exchange established under [18031]," or, my favorite, "an exchange established by the state under [18031]" all seem to be used randomly and interchangeably.

Not to mention the fact that the ACA never mentions explicitly an exchange under [18041] or an exchange established by the secretary.

The idea that there is no linguistic ambiguity is just nonsense. Nonsense of the highest order. The minute you concede ambiguity is the minute you loose the case. No sane person at a high school reading level can say there is no ambiguity honestly.

Joe said...

I deleted my other comment about spam but appreciate the clarification.

Shag from Brookline said...

Regarding linguistics and Scalia (who was not trained as a linguist, to my knowledge), consider his Heller (5-4) decision, which in effect ignored the brief of actual linguists as well the brief of actual historians relative to the introductory clause of the 2nd A. (And please, no jokes about how cunning Scalia is.)

Michael Livingston said...

I think the problem is that there have always been two Scalias (Scalie?): i. the principled textualist, ii. the social conservative. I'm afraid the latter has been winning out, of late. It's unfortunate, I really think he's one of the leading legal minds of his generation, but he's going to be remembered a little bit like Sutherland Butler McReynolds and so on--what was the line, one of the best minds of the previous century? At times it's entertaining but deep down, it's a bit sad.

Publius the Clown said...

Professor Dorf, judging from your latest comment, I think you're really saying that, when text and purpose conflict, purpose should override text. That may or may not be true, but you can see why a textualist like Justice Scalia would disagree.

Also, I think Scalia would take issue with the idea that "judges should assume that the legislature consists of reasonable people pursuing reasonable ends reasonably." This takes the focus away from the text--the only thing that's actually law--and puts it on legislators and their intentions and actions. Whether or not this shift in focus is proper, it's not very textualist.

In other words, Scalia's focus is formalistic, not functional. In his view, the right questions to ask are 1) is the text's plain meaning clear, and 2) if so, does it lead to an absurd result (which his dissent, quoting precedent, defines as "a consequence so monstrous that all mankind would, without hesitation, unite in rejecting the application").

With respect to question 1, Scalia makes a powerful argument that "Exchange established by the State" doesn't mean "Exchange established by the State or the Federal government." After all, reading the provision as the Court does effectively reads the words "by the State" out of Section 36B entirely--something that textualists are generally loath to do. (Regarding matt30's comment about Section 18041's "such Exchange" language and the statutory definition of "Exchange," that may show that the statute considers a Federal Exchange to be "established . . . under [Section 18031]." But it doesn't show that the statute considers a Federal Exchange to be "established by the State.")

With respect to question 2, a reasonable Congress may well have restricted subsidies to state-established exchanges in order to induce states to create their own. Even if this Congress didn't, or even if the gambit proved unworkable because a lot of states didn't bite, that doesn't make Scalia's reading absurd.

So I think Scalia is being perfectly true to textualism, and that you're really criticizing him for not being enough of a purposivist.

Shag from Brookline said...

Publius the C's "Also, I think Scalia would take issue with the idea that 'judges should assume that the legislature consists of reasonable people pursuing reasonable ends reasonably.'" addresses Scalia's dissent in King. Compare Scalia's dissent in Obergefell the next day with his attack upon the Court membership as undemocratic, elitist, unelected, etc. Of course Scalia is a member of the Court, so is he being critical of himself as well? Groucho Marx's "I refuse to join a club that would have me as a member" suggests that maybe it's time for Scalia to become a Marxist and exit, stage right. Or stay on the Court as a neo-anarchist.

Tam Ho said...

Great post, Prof. Dorf. To pick up on your point at the end, the unbridled hypocrisy of Scalia is just impressive for someone who fancies himself a principled man to the core. And his tone, unbelievably, seems to be getting worse lately (e.g., "Words no longer have meaning.") Scalia is indignantly accusing liberals of exercising legal realism in furtherance of political ideology? To paraphrase his dissent in Obergefell - after Bush. v. Gore, really?! This is like Tom Brady not merely reporting another quarterback for deflating footballs, but then publishing an open letter lamenting the moral bankruptcy of contemporary American sports and the general decline of civilization. (Though that comparison is probably unfair to Brady, who hasn't actually stooped to telling the public to "get over deflategate already.")

AND YET, Scalia remains, on account of these petulant dissents, the literary darling of the (to echo a point Prof. Buchanan has often made) supposedly "liberal" media. As this Gawker post points out, "[t]here is a now-familiar ritual performed by liberal commentators and journalists following Supreme Court decisions that go their way: The praising of Associate Justice Antonin Scalia’s blistering dissents." I would look forward to a law review article by you and Prof. Buchanan taking down Scalia and the "liberal" media's perpetuation of his image as sort of "the Great Dissenter" of our era.