Saturday, July 26, 2014

The secret principle behind all statutory and constitutional interpretation

We haven't yet discussed the latest legal challenge to Obamacare, which is now in the news thanks to conflicting decisions issued by the DC Circuit and the 4th Circuit on the same day last week.

The issue is that the Obamacare statute says that certain tax credits are available to people who enroll for health insurance on exchanges "established by the State." The act defines "State" to mean a state or territory of the United States, so this raises the question of whether the tax credits are available to people who enrolled on an exchange established not by a state but by the federal government. This is a live issue because many states have not established exchanges, so the federal government has stepped in as a backstop, and the IRS has issued regulations permitting the tax credits for people who enrolled on those federal exchanges.

The court decisions have mostly fallen down along party lines, as has the underlying commentary. Republican judges have found the language of the statute to be unambiguous: the tax credits are authorized only for people who enrolled in exchanges "established by the State" and not by the federal government. Whether or not this was what was "intended" by Congress, there's no real ambiguity in the statute, so it must be applied as written. Besides, this kind of carrot-and-stick federalism is not unheard of—the federal government often puts conditions on its statutes to encourage states to act—so the result is not absurd.

Democratic judges have found plenty of ambiguity in the statute when viewed as a whole, and believe the result—denying affordable health insurance to millions based on a poorly drafted statute—is absurd and clearly contravenes the intent of Congress and the purpose of the Act.

This suspiciously partisan split over the meaning of words has led to some consternation and cynicism. For example, liberal blogger Matt Yglesias:
The deep nature of the division is illustrated by the suspicious way in which legal opinions and policy preferences are lining up on this issue. Essentially everyone who believes the Affordable Care Act was an important step toward securing social justice also agrees that it would be absurd to construe the statute in a manner that’s plainly inconsistent with congress’ goals. And essentially everyone who believes it’s crucially important to give the crucial sentence the most straightforward possible reading rather than defer to the IRS’ efforts to make sense of the law as a whole, also believes that the law is a scandalous boondoggle.
Libertarianish economist Scott Sumner agrees, and goes further:
It’s an embarrassment that the two sides of the debate line up so predictably on a narrow technical issue. It says that intellectuals cannot be trusted to argue in good faith.
That's a bold statement. Can the principles of the Enlightenment be saved from this pit of cynicism and contempt?

I think so. Here's the secret principle behind all good faith legal decision making, including all statutory and constitutional interpretation—a principle that is deeply held by all public intellectuals and by all honest legal scholars, judges and justices of left, right, and center:

Do justice.

Well, okay, you say, but that's a pointless abstraction. Not so. It is the saving grace girding our legal system. Once you realize that people of good faith have profoundly held but deeply opposed conceptions of how to do justice, most of the world's seeming hypocrisy melts away.

Let's take Matt Yglesias, for example. In his post on the new Obamacare challenges, he starts out by stating how frivolous he thinks this legal challenge is:
I'm no lawyer, but from the first time I heard it the theory advanced by the plaintiffs in the Halbig case has struck me as laughably far-fetched and as best I can tell most objective legal observers agree that they are unlikely to prevail.
Reader(s)™ may remember, however, that Yglesias was one of the major proponents of the Trillion Dollar Platinum Coin. In that case, he applied a hyper-textualist reading to the coinage statute to find that it allowed minting of platinum coins of any denomination whatsoever. Now, however, he finds the same analysis (hypertextualism) to be laughably far-fetched. How can these positions possibly be reconciled? Isn't Yglesias just a hypocrite?

Not at all. The cases can easily be reconciled as long as you treat hyper-textualism as a tool to do justice rather than something to be achieved for its own case. In the Platinum Coin case, Yglesias was seduced by hyper-textualism because it provided an opportunity to do what he thought was just: to fund the federal government over what he thought was an insane and probably unconstitutional obstructionism by Republicans. In the new Obamacare case, however, hyper-textualism does a terrible injustice by undoing Obamacare.

There's a common principle here, that everyone can agree with: it is right, proper, and moral to use every tool at one's disposal to do justice. And this makes perfect sense of the partisan judicial split. Republicans are happy to apply a hyper-textualist interpretation of the Obamacare act because they don't think it's a just law—or at least, they don't think undoing it would lead to any profound injustice. Indeed, they probably see it as poetic justice that the law would be undone on a technicality, given the unusual and rushed procedures used to get it passed. Democrats, on the other hand, see the hyper-textualist interpretation as leading to so much injustice as to be practically absurd.

Descriptively speaking, I think there's really an underlying ur-canon of statutory interpretation: apply the plain text unless it seems really unfair or unjust. That's what both the Republican and Democratic judges are actually doing in this Obamacare case, and that's what most judges do most of the time. I don't have a problem with that, and you shouldn't either.


  1. "Once you realize that people of good faith have profoundly held but deeply opposed conceptions of how to do justice, most of the world's seeming hypocrisy melts away." I disagree because we do not actually disagree on "how" to do justice. We disagree on "what" is just. When judges misuse judicial rules on how to do justice (by feigning that something leads to "an absurd result" or, on the other hand, feigning that something does not), they over-reach their authority and usurp legislative authority. And when they do that, I believe they deserve condemnation whether their ideology is consistent with our own or contrary to our own.

    1. Thanks for the comment Seth.

      I agree that we disagree on what is just, and that's basically what I meant (though I think because of that we disagree on how to do it - for example, we disagree on what legislation to pass).

      I'm sympathetic to the rest of your comment, but I believe there are enough "judicial rules" and many of their guidance is indeterminate enough that in almost hard (or even medium) cases they really just provide cover for a sense of justice.

      Sometimes it is to do justice in an individual case, but sometimes there's a longer game in play. For example, Justice Scalia might well apply rules of construction to interpret a statute to advance policy goals that he finds abhorrent because he believes in the fundamental justness of the democratic process, and doesn't want to undercut a democratic result. But you can see why that rationale wouldn't be too persuasive to people who think that this Halbig thing is just a mistake - it doesn't do much justice to destroy a duly passed law by enforcing a mistake, particularly when you know that the mistake can't practicably be fixed. (And that's why the Obamacare opponents aren't comfortable just arguing this is a mistake and thems the breaks.)


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