The final paragraphs of this morning’s opinion of the Supreme Court in Kimble v. Marvel Entertainment, LLC—a patent case involving Spider-Man web-shooters—in which the Court’s decision turned on whether it would overrule its prior decision in Brulotte v. Thys Co., 379 U.S. 29 (1964):
One of Justice Kagan’s clerks is having a really, really good day today.
Around here, the reaction to President Obama’s speech at the Catholic Health Association conference a couple of days ago, where the President called out the “cynicism” underlying the petitioners’ claims in King v. Burwell – being the second attempt by die-hard Obamacare opponents to recruit five willing executioners on the Supreme Court – was nothing short of hysterical. In addition to the usual attacks on the President’s disrespect for the rule of law and Nietzschean impulses, there was renewed finger-wagging to the effect that the language in dispute is not a “a drafting error or a typo” but rather stands on its own as wholly dispositive of the matter at hand.
So, while we wait for the ruling to come down, let’s read the amicus curiae brief filed by Eskridge, et al., and see statutory interpretation done as God and Oliver Wendell Holmes intended. The introduction and summary of argument:
The court of appeals held that the Patient Protection and Affordable Care Act (ACA) does not prohibit the Internal Revenue Service (IRS) from providing tax credits to individuals who purchase health insurance on exchanges created by the Department of Health and Human Services (HHS). Petitioners challenge that conclusion on the sole ground that seven words in 26 U.S.C. § 36B – “established by the State under section 1311” – foreclose tax credits on HHS-created exchanges. The text, they say, is clear, so by holding otherwise, the court below elevated statutory purpose over statutory text.
But this is not, as Petitioners suggest, a case about textualism vs. purposivism. It is a case about good textual analysis vs. bad textual analysis. Textualism does not require courts to read statutory provisions in a vacuum. To the contrary, it is a “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (internal quotation marks omitted). By focusing exclusively on Section 36B’s seven words in isolation, Petitioners violate textualism’s core tenets and adopt an interpretation that would nullify the Act as a whole.
Modern textualism developed as a response to purposivism, which held that the letter of the law must yield to legislative “intent.” A search for legislative intent, textualists have explained, violates the constitutionally prescribed process of bicameralism and presentment: The only “law” to interpret is the text of a statute passed by both houses of Congress and signed by the president. By combing the legislative history for indicia of legislative intent, moreover, purposivist analysis risks substituting judicial judgment for the judgment of Congress. Thus, by focusing on the text of a statute – rather than on ethereal notions of legislative “intent” – textualism cabins judicial discretion, respects legislative supremacy in the policymaking process, and renders the interpretive process more predictable.
But textualism is not hyperliteralism, and textualists do not read the words of a statute in a vacuum. To the contrary, “reasonable statutory interpretation must account for both ‘the specific context in which … language is used’ and ‘the broader context of the statute as a whole.’” Utility Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2442 (2014) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)). Thus, a statutory phrase that has one apparent meaning when read in isolation may have a different meaning when read in the context of the statute as a whole.
The George Washington Bridge over the Hudson is the most beautiful bridge in the world. Made of cables and steel beams, it gleams in the sky like a reversed arch. It is blessed. It is the only seat of grace in the disordered city. It is painted an aluminum color and, between water and sky, you see nothing but the bent cord supported by two steel towers. When your car moves up the ramp the two towers rise so high that it brings you happiness; their structure is so pure, so resolute, so regular that here, finally, steel architecture seems to laugh.
— Le Corbusier
When the Cathedrals were White (1947)
Before oral arguments even begin this morning, I’m going to go way the hell out on a limb and predict the final outcome.
It will be 5-4 in favor of the government. Either (i) Roberts will write the opinion of the Court, joined by Breyer, Ginsburg, Kagan and Sotomayor, or (ii) there will be no majority opinion, with Alito, Kennedy, Scalia and Thomas on one side, Breyer, Ginsburg, Kagan and Sotomayor on the other, and Roberts siding with the government but writing only for himself. There is a slight possibility that Kennedy would join a majority opinion, leaving Roberts free to hang with the boys, but I’m counting on him to flake out with a literalist approach to the statutory language.
I take it as a given that Chevron deference to agency interpretation is a dead letter with the Court’s right wing, at least when the agency is the IRS and a Democrat is in the White House. But the more interesting discussion – which I expect to dominate today’s argument – is around Constitutional federalism and the Pennhurst doctrine, basically the idea that if Congress is going to place conditions on States’ entitlement to federal funding, it had better do so clearly and unambiguously, sort of like an “actual notice” requirement. Whatever else those four words in 26 U.S.C. § 36B may mean to a committed textualist, no one can seriously claim that Section 36B put States on Pennhurst-worthy notice that they would lose Obamacare subsidies if they didn’t set up their own exchanges. But since Alito, Scalia and Thomas have given up on being serious, that is probably what they will in fact claim.
Again assuming that Kennedy joins the nihilists, I think Roberts will use Pennhurst to thread the needle, prevent a humanitarian disaster and, once again, be the lonely steward of the Court’s reputation. His one-man opinion will uphold the IRS regulations, essentially by saying that if the IRS had instead withheld Obamacare subsidies from states that didn’t set up their own exchanges, it would have violated principles of Constitutional federalism under Pennhurst. The four liberal Justices may join Roberts’ opinion (making it an opinion of the Court), but I think it’s at least as likely that they will write their own opinion, basically on Chevron or general “don’t waste my time with this nonsense” grounds. The main reason I think that may happen is because Roberts will go a little too far with his Pennhurst logic in an attempt to snatch a conservative victory from the jaws of Obamacare defeat, and try to sneak in a brand new way for States to challenge federal mandates. (That federalism stuff is dangerous, I tell you.) So Roberts will be on his own, much as he was with his taxing power argument in NFIB v. Sebelius.
Well. Now I’m feeling exposed. Still, I hope I’m right. All this nifty argumentation aside, if the challengers win this one, with full knowledge of how many people will die as a direct result, they’re not just vandals – they’re terrorists.
At least Silberman acknowledges that the WMDs didn’t exist, and that our war aims depended on the existence of WMDs. And by doing so, Silberman implicitly accepts that the invasion of Iraq – and not merely the intelligence failures leading up to it – was a colossal foreign policy and military blunder with enormous costs in blood, treasure and prestige. Quibbling about whether President Bush (as opposed to the Bush Administration) lied (as opposed to being merely prone to confirmation bias) is, to me, a distraction from what might be learned from a tragic failure of governance and leadership.
Which leads me to say, okay, President Bush (the person) didn’t (knowingly, willfully) lie. So what? What, exactly, does that prove about the stupidity and fecklessness of government in the 21st century – just a few years following the end of a long cold war during which, through a combination of smarts, moral courage, rigorous analysis, skepticism and, yes, basic humanity did we (and the Soviets), our immense nuclear arsenals on hair-trigger alert, still manage not to wipe out civilization? If intelligence failures up the US chain of command had resulted in our launching a nuclear first strike against the Soviet Union and their launching a retaliatory strike against the United States, would the fact that the President’s own personal conduct wasn’t to blame have helped one God-damned thing? Have we really defined Presidential leadership down to this extent?
Another way that Silberman’s analysis oversimplifies and distracts is by setting up the “intelligence community” and the “Bush Administration” as separate entities operating at arm’s length. I think anyone who understands how government institutions operate, especially at the executive policy-making level, knows that individuals from different offices, agencies and even branches of government tend to create informal alliances and networks that share information and access and pursue common policy agendas. Nothing especially nefarious about this – but these alliances and networks do tend to obscure whether someone is “pressuring” someone else to make a particular finding. In other words, the fact that elements of the intelligence community and the Bush Administration were working together with the shared goal of invading Iraq (apparently on the basis of any plausible pretext) makes it next to impossible to find the smoking gun evidence that Silberman seems think is necessary to conclude that any arm-twisting took place.
Look. As I am forever reminding you, this is the government we’re talking about. Government agencies and their agenda-setters come up with ideologically motivated, poorly reasoned findings as a matter of utmost routine. Want the CIA to say that Saddam has WMDs? The neoconservative alliance says: here you go. Want the Treasury Department to say that asset management firms can threaten financial stability? The market risk hysteria network says: coming right up. There is no difference between the two except in terms of their potential for death and destruction. Anyone who automatically gives more deference to police/military/intelligence agencies just isn’t thinking clearly.