Talking Textualism, Practicing Pragmatism: Rethinking the Supreme Court’S Approach to Statutory Interpretation

TALKING TEXTUALISM, PRACTICING PRAGMATISM: RETHINKING THE SUPREME COURT’S APPROACH TO STATUTORY INTERPRETATION

Robert J. Pushaw, Jr.*

TABLE OF CONTENTS

I. INTRODUCTION ...... 123

II. STATUTORY INTERPRETATION ...... 133 A. GENERAL INTERPRETIVE APPROACHES ...... 133 1. England: The Evolution to Blackstonean Textualism ...... 134 2. America’s Constitution and the Presumption of Textualism ...... 139 3. The Early Court’s Embrace of Textualism ...... 143 4. A Century of Textualism ...... 147 5. The Court’s Retreat from Textualism ...... 150 6. The Judicial and Scholarly Debate: Textualism vs. Pragmatism ...... 156 a. The Textualist Backlash ...... 156 b. Pragmatism ...... 163 7. Talking Textualism, Practicing Pragmatism ...... 171 B. THE INTERPRETIVE CANONS ...... 178

III. THE OBAMACARE CASES ...... 186 A. OBAMACARE IN A NUTSHELL ...... 186 B. PASSING OBAMACARE ...... 188 C. NATIONAL FEDERATION AND THE INDIVIDUAL MANDATE ...... 191

* James Wilson Endowed Professor, Pepperdine University School of Law. J.D., Yale, 1988. I dedicate this Article to Beth Garrett—a true friend, a distinguished scholar of statutory interpretation (and many other subjects), a wonderful teacher, and a superb administrator. I would also like to thank A.J. Bellia, Kurt Lash, Grant Nelson, Jim Pfander, and Max Stearns for their thoughtful comments.

121 122 GEORGIA LAW REVIEW [Vol. 51:121

1. The Commerce Clause ...... 192 2. The IM as a “Tax” ...... 193 a. The Taxing Power ...... 193 b. National Federation’s Tax Analysis ...... 195 i. The Majority Opinion...... 195 ii. A Critique of the Court’s Decision ...... 197 1. Text ...... 197 2. Intent ...... 198 3. Purpose ...... 198 4. Precedent ...... 199 5. The “Constitutional Avoidance” Canon .. 202 6. Pragmatism ...... 204 3. The Medicaid Expansion and the Spending Power ...... 205 4. Concluding Observations About National Federation ...... 206 D. KING AND “EXCHANGES ESTABLISHED BY THE STATE” .... 207 1. Textualism ...... 208 2. Intent ...... 214 3. Purpose ...... 216 4. Precedent ...... 219 5. Pragmatism ...... 221

IV. THE SUPREME COURT AND STATUTORY INTERPRETATION ...... 224 A. THE LESSONS OF THE OBAMACARE DECISIONS ...... 225 B. POSSIBLE EXPLANATIONS FOR FREE-FORM STATUTORY INTERPRETATION ...... 227 C. TOWARDS A MORE COHERENT SYSTEM OF STATUTORY CONSTRUCTION ...... 229

V. CONCLUSION ...... 233

2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 123

I. INTRODUCTION

Supreme Court cases interpreting Acts of Congress usually contain multiple conflicting opinions that yield seemingly arbitrary results. Indeed, the Court’s general approach to statutory construction virtually guarantees analytical incoherence. On the one hand, Justice Scalia persuaded his colleagues to expressly adopt “textualism.” This methodology enforces the semantic meaning of a statute’s words—their likeliest usage to a reasonable person familiar with both ordinary linguistic conventions and the statute’s specific context, such as its subject matter and its other provisions.1 Thus, Justice Scalia (with help from Frank Easterbrook, John Manning, and others) seemingly revived and refined this traditional Anglo-American mode of interpretation, which had fallen out of favor after the New Deal.2 On the other hand, the Court has implicitly followed a pragmatic approach, which assumes that statutory language is usually ambiguous (that is, inherently susceptible to at least two different understandings) or vague (an open-ended term, like “reasonableness,” that has one meaning but can be applied in various ways to diverse factual situations).3 Pragmatism comes in two forms. The first (and standard) type, championed by Richard Posner, posits that various legislative materials—a law’s text, its drafters’ intent regarding specific provisions (as revealed mainly by

1 He defended textualism in many judicial opinions and in two books, one coauthored with a distinguished lexicographer. See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 9–37 (1997); ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 3–414 (2012). Justice Scalia gradually influenced his fellow Justices to formally embrace textualism, although only he and Justice Thomas have applied it faithfully. See infra notes 244–46 and accompanying text. 2 The seminal work is Frank H. Easterbrook, Statutes’ Domains, 50 U. CHI. L. REV. 533 (1983) (contending that judicial construction of legislation should be limited to determining the probable meaning of its text and that the statute should be applied only to cases that its drafters anticipated and expressly resolved). Over the past two decades, John Manning has emerged as textualism’s leading academic advocate. A crisp summary of his scholarship—and of the evolution of modern textualism’s basic principles and justifications—can be found in John F. Manning, Second-Generation Textualism, 98 CAL. L. REV. 1287 (2010) [hereinafter Manning, Second-Generation]. 3 See SCALIA & GARNER, supra note 1, at 31–33 (noting that ambiguity typically results from careless drafting, whereas vagueness is often intentional because a legislature cannot foresee all possible applications of its law); id. at 9–15, 18–28, 96–98, 343–54, 377–91 (rejecting pragmatism). 124 GEORGIA LAW REVIEW [Vol. 51:121 legislative history), its overall purpose,4 and precedent construing similar statutory verbiage—will allow for more than one possible interpretation.5 Therefore, judges must consider all of this evidence and choose the construction that will have the most beneficial practical consequences, especially by furthering the policy aims of the enacting Congress.6 The second, and more troubling, strain of pragmatism distorts a statute to reach a result that either (a) comports with a Justice’s political, ideological, or policy preferences, or (b) protects the Court from partisan attacks.7 Such raw pragmatism is immune from objective criticism, as any contrary interpretation rests on the opposite subjective views. Even “standard” pragmatism cannot easily be challenged on legal grounds because divergent opinions simply reflect a different weighing of a hodgepodge of factors. Put bluntly, the Court’s general approach to statutory interpretation deploys textualist rhetoric to mask pragmatic decisions. To compound the confusion, the Justices routinely invoke specific “canons” of construction that appear to set forth concrete rules,8 yet actually feature malleable standards that can easily be manipulated.9 For instance, if a statute can fairly be read in two ways, and one will avoid constitutional questions, that interpretation should be chosen.10 Although that canon sounds straightforward, its application requires judges to make two determinations that entail the exercise of considerable discretion: whether a statute is genuinely ambiguous and, if so, whether a proffered construction is reasonable. Similar difficulties arise in

4 A statute’s “purpose” (general aims) should be distinguished from its “intent” (its specific contemplated application). See John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1, 6 (2001) [hereinafter Manning, Equity]. 5 See Richard A. Posner, Statutory Interpretation—in the Classroom and in the Courtroom, 50 U. CHI. L. REV. 800 (1983). This groundbreaking essay and numerous other scholarly and judicial writings have established Judge Posner as the leading advocate of pragmatism. See infra notes 204–06, 220–22, 225 and accompanying text. 6 See Posner, supra note 5, at 817–18. 7 See infra notes 230–33, 243, 462–72, 477–79, 599–605 and accompanying text. Of course, no Justice would ever publicly admit to such naked pragmatism, so it must be inferred, as when the Court’s opinion otherwise makes little sense. 8 See SCALIA & GARNER, supra note 1, at 51–410 (summarizing and defending the utility of seventy interpretive canons and principles). 9 For discussion of the canons, see infra Part II.B. 10 This “constitutional avoidance” canon has deep roots. See Mossman v. Higginson, 4 U.S. (4 Dall.) 12, 14 (1800); see also infra notes 285, 401–02, 455–63 and accompanying text. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 125 implementing the Chevron rule, which directs courts to defer to an executive agency’s “permissible” interpretation of unclear terms in its governing statute.11 In applying both general approaches to statutory construction and specific canons, then, the Court has remarkable latitude. Moreover, the Justices have few qualms about asserting such discretion, apparently because they believe their legal competence and wisdom far surpasses Congress’s.12 This judicial self- confidence derives in part from the sheer amount of federal legislation that is poorly drafted and unduly complicated.13 And the Justices’ freewheeling statutory interpretation rarely generates public backlash, for two reasons. First, Americans hold the Court in much higher esteem than Congress.14 Second, litigated statutes usually affect, and therefore are of interest to, only a small group. Hence, only those few cases that involve legislation of widespread importance attract attention and spotlight the dangers of vast interpretive discretion. Most controversial are the Court’s decisions that salvaged the Patient Protection and Affordable Care Act (ACA or Obamacare).15 This landmark law sought to increase access to health care by requiring most Americans to purchase insurance, but making it less expensive by imposing price controls on insurers and providing tax credits for those who bought policies on “Exchanges” (insurance markets) “established by the State.”16 The Court has issued two key rulings on the ACA. First, National Federation of Independent Business v. Sebelius17 concerned the “Individual Mandate” (IM) that Americans buy health insurance or pay a “penalty” to the Internal Revenue

11 Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). 12 See infra Part IV.B. 13 See infra notes 144–49, 178, 205–07, 621 and accompanying text. 14 See Confidence in Institutions, GALLUP, http://www.gallup.com/poll/1597/confidence-ins titutions.aspx (last visited Oct. 3, 2016) (reporting that 32% of Americans surveyed in June of 2015 had a “Great Deal/Quite a lot” of confidence in the Court, while only 8% held that opinion about Congress). 15 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (amended by the Health Care and Education Reconciliation Act, Pub. L. No. 111-152, 124 Stat. 1029 (2010) (codified in scattered sections of 25, 26, 29 and 42 U.S.C.)). 16 See infra Part III.A (summarizing the ACA’s main provisions). 17 132 S. Ct. 2566 (2012). 126 GEORGIA LAW REVIEW [Vol. 51:121

Service (IRS).18 The Court unanimously asserted that it was adopting both a textualist methodology and the canon that statutes should be read, where reasonable, to avoid constitutional issues.19 In applying textualism and the avoidance canon, however, the Court split. Justices Scalia, Kennedy, Thomas, and Alito argued that the IM could plausibly be interpreted only one way: as a “penalty” (a monetary punishment for violating a law enacted to achieve a regulatory goal), not a “tax” (an enforced contribution to support the government).20 They emphasized that the ACA’s text repeatedly refers to the IM as a “penalty” and never as a “tax.”21 Furthermore, these Justices demonstrated that Congress’s declared intent was to impose a financial punishment for noncompliance with the IM, which had been included as part of a scheme to regulate interstate commerce in medical insurance.22 Conversely, Congress and President Obama had explicitly disavowed that the IM was a “tax.”23 Finally, these Justices noted that the Court had never before interpreted an express statutory “penalty” for violating a regulatory law as a “tax.”24

18 ACA, 26 U.S.C. § 5000A. 19 See Nat’l Fed’n, 132 S. Ct. at 2593 (Roberts, C.J.); accord id. at 2609, 2629 (Ginsburg, J., concurring in part, dissenting in part); id. at 2650–51 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). 20 Id. at 2650–55 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). 21 Id. at 2650, 2653. 22 Id. at 2652 (citing 42 U.S.C. §§ 18091(2)(A), (2)(C), (2)(D), (2)(H), (3)). Indeed, all nine Justices recognized that Congress had enacted the IM as an exercise of its power “to regulate Commerce . . . among the several States.” Id. at 2584 (Roberts, C.J., joined by Ginsburg, Breyer, Sotomayor, and Kagan, JJ.) (citing U.S. CONST. art. I, § 8, cl. 3); id. at 2647 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting) (same). Chief Justice Roberts and his four Republican colleagues held that the Commerce Clause authorized Congress to regulate only existing interstate commercial “activity”—not to order citizens who were not engaged in such activity to purchase an unwanted product. Id. at 2585–93 (Roberts, C.J.); accord id. at 2643–50 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). By contrast, the four liberal Justices argued that precedent dictated judicial deference to Congress. See id. at 2609–28 (Ginsburg, J., concurring in part, dissenting in part, joined by Breyer, Sotomayor, and Kagan, JJ.). The key point is that Congress expressly stated that it had passed the IM pursuant to its power to regulate interstate commerce. Therefore, the dispositive issue was whether the IM might be sustained on the alternative ground that Congress had implicitly exercised its distinct power to tax. See infra Part III.C.2 (discussing the IM as a tax). 23 See Nat’l Fed’n, 132 S. Ct. at 2650–55 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting) (citing sources). 24 Id. at 2653. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 127

Chief Justice Roberts agreed with the foregoing analysis for a long time after oral argument, but then switched to join Justices Ginsburg, Breyer, Sotomayor, and Kagan in holding that the IM “penalty” could also reasonably be construed as a “tax” on those who forego health insurance.25 This interpretation enabled the majority to sustain the IM as a valid exercise of Congress’s Article I power to “lay and collect Taxes.”26 The Court did not properly apply either the avoidance canon or the textualist approach. In fact, its opinion is unintelligible even under standard pragmatism because all of the relevant evidence— the ACA’s language, Congress’s intent and purpose, and precedent—indicated that the IM exaction was a regulatory “penalty,” not a “tax.” Rather, the majority negated the statute by asserting raw pragmatism. The four liberal Democratic Justices appeared to follow their politics and ideology, while Roberts was driven by institutional concerns for preserving the Court’s reputation as nonpolitical (avoiding a scenario in which all five Republican Justices invalidated the signature legislative accomplishment of a Democratic President).27 Second, King v. Burwell28 involved the Obamacare provision that “[e]ach State shall . . . establish . . . an American Health Benefit Exchange”—an online market for medical insurance.29 If a State does not create such an Exchange, the U.S. Department of Health and Human Services (HHS) must do so.30 The ACA grants a generous tax credit to those who purchase insurance on “an Exchange established by the State”31—a subsidy that everyone

25 Id. at 2593–2601 (Roberts, C.J.); accord id. at 2609, 2629 (Ginsburg, J., joined by Breyer, Sotomayor, and Kagan, JJ., concurring in part, dissenting in part). A veteran Court reporter broke the news that Roberts had flipped. See Jan Crawford, Roberts Switched Views to Uphold Health Care Law, CBSNEWS (July 1, 2012), http://www.cbsnews.com/8301- 3460_162-574549. 26 Nat’l Fed’n, 132 S. Ct. at 2598–2601 (Roberts, C.J.) (citing U.S. CONST. art. I, § 8, cl. 1); accord id. at 2609, 2629 (Ginsburg, J., joined by Breyer, Sotomayor, and Kagan, JJ., concurring in part, dissenting in part). 27 See infra Subsections III.C.2.b, III.C.4, and IV.A (discussing these pragmatic calculations, especially Chief Justice Roberts’s odd attempt to portray the Court as apolitical by making discretionary political and institutional judgments). 28 135 S. Ct. 2480 (2015). 29 ACA, 42 U.S.C. §§ 18031(b)(1), (d)(1)–(4). 30 Id. § 18041(c). 31 ACA, 26 U.S.C. § 36B(c)(2)(A)(i). 128 GEORGIA LAW REVIEW [Vol. 51:121 assumed would induce almost every State to set up an Exchange.32 Unexpectedly, however, only sixteen States did.33 Nonetheless, the IRS also gave the tax credit to those who had procured insurance on the Federal Exchanges.34 Employing a textualist methodology, Justices Scalia, Thomas, and Alito concluded that “an Exchange established by the State” meant exactly what it said—and not an Exchange established by the Federal Government.35 They stressed that the ACA (1) expressly defines “State” to include only the fifty States and the District of Columbia, and (2) repeatedly uses the phrase “Exchange established by the State” in contrast to Exchanges created by either HHS alone or by both levels of government.36 The other six Justices also espoused textualism and conceded that their three colleagues had set forth “the most natural” interpretation of the tax credit provision, but ultimately ruled that the credit could be extended to the States with Federal Exchanges.37 The Court justified this result as promoting (1) the proper functioning of the Act as a whole, including its insurance price controls and the IM; (2) Congress’s likely intent in providing tax credits (helping poor Americans purchase health insurance); (3) the ACA’s main purpose (increasing access to medical care); and (4) practical and policy considerations, especially stability in insurance markets.38 This approach, however, is standard pragmatism and should candidly have been acknowledged as such. Instead, the majority purported to apply textualism, which should have led to the determination that “an Exchange established by the State” had a self-evident meaning.39 To make matters worse, the majority declined to apply the Chevron canon of deference to the IRS’s interpretation on the ground that the tax-credit provisions were so important that the Court had to independently determine their

32 See infra notes 337–41, 357, 480–83, 533–38, 544–46, 563–66 and accompanying text. 33 See, e.g., infra notes 484, 538, 545 and accompanying text. 34 45 C.F.R. § 155.20. 35 King, 135 S. Ct. at 2496–2507 (Scalia, J., dissenting, joined by Thomas and Alito, JJ.) (emphasis added). 36 Id. at 2497–99. 37 Id. at 2489–96 (Roberts, C.J., joined by Ginsburg, Breyer, Sotomayor, and Kagan, JJ.). 38 Id. 39 See supra notes 35–37 and accompanying text. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 129 meaning.40 Neither the textualist methodology nor the Chevron canon, then, can explain the majority’s conclusions. National Federation and King illustrate a troubling trend in statutory interpretation. As usual, the Court said it was applying textualism, but resorted to pragmatism sub rosa. And, once again, the Justices manipulated canons of construction to buttress results reached on other grounds. Finally, the Court was in the familiar position of believing that its exercise of great discretion was warranted because it was analyzing a badly written, needlessly complex statute.41 The ACA cases caught the attention of the public, the media, and scholars. However, they divided overwhelmingly along partisan lines, which obscured valid legal criticisms. Furthermore, ordinary citizens and pundits show little lasting interest in the Court’s statutory (as opposed to constitutional) interpretations. In any event, even its unpopular individual decisions do not appreciably affect Americans’ overall trust in the Court (especially vis-a-vis Congress).42 Thus, the Justices lack practical incentives to change course in statutory construction. Nevertheless, respect for the rule of law and intellectual integrity should prompt the Court to develop a more principled jurisprudence. The critical step would be to adopt and consistently apply a single general approach. At first glance, standard pragmatism seems to be the best option because it promises to realistically address the ever- increasing amount and complexity of modern legislation.43 A messy process of negotiation among Representatives and Senators, their huge staffs, and assorted special interest groups produces

40 King, 135 S. Ct. at 288–89 (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984)). 41 Indeed, the ACA was especially flawed because it was rushed through Congress using highly unusual procedures that prevented ordinary bipartisan debate and attention to detail. See infra Part III.B. 42 See supra note 14 and accompanying text; infra notes 616, 618 and accompanying text. 43 For development of the arguments made in the following three paragraphs, see infra notes 204–43, 621–25 and accompanying text. I use “pragmatism” loosely to cover a variety of flexible approaches to statutory interpretation that do not focus on determining the text’s semantic meaning. For example, judges and scholars might seek to (1) discern the intent underlying the individual provision at issue; (2) effectuate Congress’s overarching purpose; (3) adapt statutory language to unique facts and changing circumstances; or (4) impose their personal and policy preferences. 130 GEORGIA LAW REVIEW [Vol. 51:121 statutory provisions that are often unclear, cannot be squared with other provisions, and create problems of applicability that Congress did not foresee. Consequently, the Court must have broad discretion to evaluate all sources of a statute’s meaning in light of the facts, then select the interpretation that most likely accords with Congress’s policy goals and that reaches the most sensible result. Pragmatism has grave flaws, however. Most obviously, the Justices lack adequate time to carefully read even the text of a statute that exceeds a certain length—much less digest its legislative history, recreate its historical context, determine the purposes and policy aims of hundreds of members of Congress, consult all the relevant precedent, and then figure out the most rational way to apply this melange of evidence to facts that Congress may not have even contemplated. Moreover, none of the Justices has served in Congress, which makes it unlikely that they truly understand the intricacies of the legislative process. And even if the Court had such expertise, it could never learn about the behind-the-scenes bargaining that generates many statutory provisions. The Justices often cannot determine why particular statutory language was chosen; all they know for sure is that it was adopted. Furthermore, judicial discretion tends to become unlimited when it is not tethered to text. In discerning what result reasonable legislators would have wanted, a judge naturally attributes to Congress policy goals, intents, and purposes that conform to his or her personal, political, or ideological views. Most importantly, because statutes have multiple purposes, the Court can isolate one and define it at a high level of generality to justify departing from clear text—and thus upset the compromises embodied in the statute itself.44 Finally, pragmatism exacerbates the problem of poor drafting, as it reduces Congress’s incentive to write laws carefully. Ironically, then, pragmatism is not all that practical. Judicial understanding of all legislative materials is impossible, and attempts to plumb their depths frequently lead to a result-oriented

44 To take a pertinent example, the purpose of the ACA tax credits could be characterized as specific (to induce States to establish Exchanges), relatively general (to help the uninsured buy insurance), or highly abstract (to promote public health). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 131 amending of statutes. By contrast, textualism is far more efficient (because it focuses on the statute alone), capable of successful application (since the Justices are skilled at parsing legal texts), and less susceptible to manipulation (as deviation from the normal meaning of statutory terms will be obvious). Moreover, pragmatism cannot easily be reconciled with the Constitution, which created a democracy based upon the separation-of-powers premise that electorally responsible representatives make policy through legislation and politically unaccountable courts faithfully enforce such statutes.45 Most pertinently, Article I authorizes Congress to exercise “legislative power” (i.e., to pass or amend laws that reflect the majority’s wishes) through a deliberative process that requires the concurrence of the House and Senate (bicameralism) and the President’s approval (presentment).46 The enacted statute is the law that expresses the will of Congress, which presumably uses words to convey their ordinary meaning to a competent reader in light of their semantic context—including the statute’s entire text, its subject matter, and its stated purpose. Conversely, the subjective understandings, purposes, or policy preferences of individual legislators or minority blocs who could not get their views enacted are legally irrelevant. Significantly, Article I excludes courts from the legislative process. Article III reinforces this independence by giving judges life tenure and secure salaries47 so they can impartially exercise “judicial power”: rendering a judgment after “expounding” the law—interpreting it and applying it to the facts.48 When the

45 See Robert J. Pushaw, Jr., Justiciability and Separation of Powers: A Neo-Federalist Approach, 81 CORNELL L. REV. 393, 399–452 (1996) [hereinafter Pushaw, Justiciability] (tracing the historical development of separation of powers). The constitutional arguments supporting textualism, summarized in the following two paragraphs, are elaborated upon infra notes 85–109, 114–24, 192–99, 230, 240–42, 488–92, 623–25 and accompanying text. 46 U.S. CONST. art. I, § 1; U.S. CONST. art. I, § 7. 47 U.S. CONST. art. III, § 1. 48 See Pushaw, Justiciability, supra note 45, at 417–27, 431–34. Ideally, interpretation is a mechanical process of ascertaining a law’s most probable meaning, whereas application of this law to new factual situations (often driven by technological changes) involves the exercise of some, but not untrammeled, discretion. See SCALIA & GARNER, supra note 1, at 5, 86–87; Easterbrook, supra note 2, at 535–36. For instance, assume that a 1960 statute made it a felony to “steal goods worth more than $50.” That law must be interpreted according to its obvious meaning and could not be construed, say, as setting a $400 minimum to account for inflation. However, a judge could validly exercise discretion to

132 GEORGIA LAW REVIEW [Vol. 51:121 governing law is a statute, courts must ascertain and enforce its semantic meaning. The only exception is the exceedingly unusual situation when doing so would produce a result that is absurd— not merely one deemed distasteful or unwise. In the less rare, but still minority, of cases where a reasonable reader (as distinguished from a clever lawyer) would find statutory language unclear, resort to other legislative materials would be necessary for the limited purpose of determining Congress’s likely usage. That is quite different, however, from relying on such outside evidence to manufacture an ambiguity out of words that are actually clear. In short, the Constitution presupposes that judges will merely implement a statute as written and that Congress can (if it chooses) amend its law.49 Accordingly, both practical and constitutional considerations should persuade the Court to adopt and apply textualism as its basic approach.50 Furthermore, the Justices should candidly acknowledge the shortcomings of the canons of construction. Such rules, however, typically do little independent work and are

apply that statute to the theft of goods that did not exist in 1960 (such as cell phones), as long as their value exceeded $50. 49 Some scholars have questioned these assumptions on the ground that members of Congress do not personally write statutes and rarely amend them. See infra notes 212–15 and accompanying text. Nonetheless, the Constitution’s democratic foundation presupposes that Congress will be held responsible for its laws and for making needed changes. Therefore, the constitutional system can function as intended only if courts faithfully apply textualism, which effectively induces Congress to pay closer attention to statutory language. By contrast, pragmatism enables Congress to shirk its constitutional duties and, relatedly, requires courts to exceed their constitutional powers by actively participating in the legislative process instead of merely interpreting its product, statutes. See infra notes 229–42 and accompanying text. 50 Professor Manning correctly maintains that the Court has decisively shifted to textualism as its baseline method. See John F. Manning, The Means of Constitutional Power, 128 HARV. L. REV. 1, 4, 9–10, 29–30, 67, 73 (2014) [hereinafter Manning, Means]; see also id. at 9 n.35, 22–30, 62 n.359, 69–71, 74–75 (citing many examples of the Court’s strict adherence to textualism). However, he acknowledges the Court’s lack of “perfect consistency” and laments the cases he regards as “exceptions.” Id. at 4, 29–30, 71–73; see also John F. Manning, Chevron and the Reasonable Legislator, 128 HARV. L. REV. 457 (2014) (reiterating that point, but adding that in other cases (such as the Chevron line) textualists have properly and modestly considered factors like purpose where the statutory text itself leaves a margin of discretion). By contrast, I believe that this inconsistency is more widespread and is on the rise. The Court has shown an increasing tendency to pragmatically deviate from textualism while professing to apply it, as National Federation and King illustrate. And this trend is likely to accelerate after the death of Justice Scalia, one of the Court’s two true-blue textualists. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 133 instead cited to reinforce a conclusion already reached after applying a general interpretive methodology. Therefore, reform depends upon changing the overall approach. The foregoing ideas will be developed in three Parts. Part I describes various methods of statutory interpretation and canons of construction. Part II illuminates the problems with the Court’s jurisprudence through a close study of the Obamacare cases. Part III defends textualism as the best mode of statutory construction and recommends deemphasizing canons.

II. STATUTORY INTERPRETATION

Each year, the Court decides many cases that require statutory construction. The Justices apply different interpretive approaches and myriad canons, and every Act of Congress is unique. Not surprisingly, neither the Court nor any individual Justice has achieved perfect consistency. Nonetheless, the disparities within and across cases are so large that they lead to the conclusion that statutory interpretation is idiosyncratic rather than systematic.51 A complete explanation of how we have gotten to this point over the past two centuries would require many volumes. Thus, I will merely sketch the major developments in statutory interpretation, both general methodologies and specific canons.52

A. GENERAL INTERPRETIVE APPROACHES

Interpretation is the process of determining the meaning of words. Hence, construing a statute necessarily involves parsing its language. Modern judicial and scholarly disputes center on the

51 Many commentators have lamented the Court’s failure to develop a coherent and predictable interpretive framework. See, e.g., Abbe R. Gluck, Imperfect Statutes, Imperfect Courts: Understanding Congress’s Plan in the Era of Unorthodox Lawmaking, 129 HARV. L. REV. 62, 62–67, 80–87 (2015); Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085, 2086, 2088, 2142–44 (2002). 52 It would be impossible to cite the thousands of cases, hundreds of articles, and dozens of books that deal with statutory interpretation. Thus, I will focus on representative cases and the work of the leaders of textualism (Antonin Scalia, Frank Easterbrook, and John Manning) and pragmatism (Richard Posner, Stephen Breyer, William Eskridge, and Philip Frickey). 134 GEORGIA LAW REVIEW [Vol. 51:121 use of non-textual evidence. To understand these debates, it is helpful to review relevant Anglo-American history.53 1. England: The Evolution to Blackstonean Textualism. Statutory interpretation emerged as a distinct activity only after centuries of political and legal developments following the Norman Conquest. The King alone possessed sovereignty (government power) and the prerogative to do justice, but he periodically assembled a Great Council of high nobles and clerics to assist with major legislative, executive, and judicial tasks.54 This Council developed into the House of Lords and combined with the House of Commons (which emerged in the fourteenth century) to form a Parliament, which helped the King exercise legislative power.55 Lords also served as the High Court for legal appeals, which oddly gave it the final say on its own statutes.56 The King also assigned

53 I have previously demonstrated that the Framers and Ratifiers rejected the English idea that the government, as sovereign, possessed vast “inherent” powers—in particular, that courts were subsumed within the executive branch and thus shared in the royal prerogative to do justice. See Robert J. Pushaw, Jr., The Inherent Powers of Federal Courts and the Structural Constitution, 86 IOWA L. REV. 735, 738–47, 799–843 (2001) [hereinafter Pushaw, Inherent Powers]. Rather, in the Constitution, the sovereign “People” separated the federal government into three independent branches and enumerated their powers, thereby foreclosing most assertions of “inherent” authority. See id. at 741, 822–43, 867; see also Pushaw, Justiciability, supra note 45, at 396–454 (explaining how this new constitutional design required changing British concepts of justiciability). Specifically, absent congressional authorization, Article III courts could claim only “implied indispensable powers”—those absolutely necessary to their exercise of “judicial power”— such as overseeing the fact-finding process, maintaining courtroom control, and protecting their judgments. See Pushaw, Inherent Powers, supra, at 741–42, 822–28, 843–48, 850–67. In an article published simultaneously with mine and based on independent research, John Manning marshaled similar historical evidence and concluded that the Constitution’s structure (especially separation of powers) prohibited federal courts from invoking the ancient British inherent “judicial power” of interpreting statutes equitably—i.e., deviating from their semantic meaning to fulfill their animating “spirit” or “purpose.” See Manning, Equity, supra note 4, at 7–9, 22–105, 126–27. Professor Manning and I supported our theses with massive historical documentation. The following analysis presents a condensed version. 54 See Pushaw, Inherent Powers, supra note 53, at 800; Manning, Equity, supra note 4, at 37. 55 See Pushaw, Inherent Powers, supra note 53, at 800; Manning, Equity, supra note 4, at 39–47. 56 See Pushaw, Inherent Powers, supra note 53, at 800, 809–10 n.395 and accompanying text; Manning, Equity, supra note 4, at 36, 39, 41, 44–46, 60–61. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 135 specialized administrative and judicial duties to a smaller permanent council.57 These councils eventually evolved into three royal courts: Common Pleas (which heard civil suits via common law writs); King’s Bench (which decided cases implicating royal interests); and Chancery (which had equitable discretion to do justice by granting remedies when other courts could not).58 Courts gradually became more autonomous as the idea of “law”—fixed rules applied in a neutral manner—developed.59 Moreover, various charters established that a supreme constitutional law limited even the King.60 Nevertheless, the judicial ideal of impartially enforcing the law remained elusive because judges helped draft statutes and also were part of the executive branch, served at the King’s pleasure, and gave him legal advice.61 Courts thus became embroiled in momentous disputes in which Parliament opposed the Crown’s claims of absolute prerogative, including independent lawmaking power.62 Finally, in the Glorious Revolution of 1688, William and Mary acceded to Parliament’s sovereignty and agreed to abide by a Declaration of Rights.63 In 1701, the Act of Settlement ensured judges’ independence through life tenure and salary guarantees.64 Despite these fundamental changes, English thinkers continued to divide all government powers into only two categories: (1) Parliament’s “legislative” power to make, amend, or repeal general and prospective laws, and (2) the King’s “executive” power to execute the law and wield certain prerogatives—including the administration of justice, which was entrusted to courts.65

57 See Pushaw, Inherent Powers, supra note 53, at 800; Manning, Equity, supra note 4, at 37. 58 See Pushaw, Inherent Powers, supra note 53, at 800–04; Manning, Equity, supra note 4, at 38–39. 59 See Pushaw, Inherent Powers, supra note 53, at 805–06. 60 See id. at 806. 61 Manning, Equity, supra note 4, at 36–44, 47–52. 62 Pushaw, Inherent Powers, supra note 53, at 806–07; Manning, Equity, supra note 4, at 36–37, 47–50. 63 Pushaw, Inherent Powers, supra note 53, at 807; Manning, Equity, supra note 4, at 36– 37, 47, 49. 64 See Pushaw, Inherent Powers, supra note 53, at 807; Manning, Equity, supra note 4, at 49. 65 See Pushaw, Inherent Powers, supra note 53, at 807–09; Pushaw, Justiciability, supra note 45, at 400–02. 136 GEORGIA LAW REVIEW [Vol. 51:121

Although judges shared in the executive power, they did so through the impartial exercise of a uniquely judicial function: rendering judgments after “expounding” the law—interpreting it and applying it to the facts.66 Courts did not immediately grasp the ramifications of the Glorious Revolution and Act of Settlement for statutory construction. For centuries, Parliament had exercised its power sporadically and ineffectively.67 Judges had filled this vacuum in three ways, with little concern that they were “making” law (an activity they had long shared with the King and Parliament).68 First, they often interpreted statutes “equitably”—extending or contracting their “letter” (semantic meaning) to promote their “spirit” (animating purpose) and avoid unjust results.69 Second, courts created a huge supplementary common law.70 Third, they formulated canons to protect their turf, such as by narrowly reading statutes deemed to be in derogation of common law.71 Furthermore, because judges could not invalidate an Act of Parliament as violating England’s unwritten Constitution, they sometimes imaginatively construed statutes to avoid conflict with fundamental principles like due process.72 By the mid-eighteenth century, however, English jurisprudence had shifted toward textualism, as definitively described in Blackstone’s Commentaries. Initially, he cautioned that judicial

66 See Pushaw, Inherent Powers, supra note 53, at 808–09. 67 See Robert J. Pushaw, Jr., Article III’s Case/Controversy Distinction and the Dual Functions of Federal Courts, 69 NOTRE DAME L. REV. 447, 476–77 (1994) [hereinafter Pushaw, Case/Controversy]. This problem persisted until the 1830s. See Pushaw, Inherent Powers, supra note 53, at 808 n.383. 68 See Manning, Equity, supra note 4, at 30–31, 36–37, 40–56 (emphasizing that the longstanding jumbling of legislative, executive, and judicial functions made it seem natural to English judges that they could help create the law, including when they interpreted statutes). 69 See Pushaw, Case/Controversy, supra note 67, at 476–77 (pointing out that Parliament’s shoddily drafted legislation led courts to engage in equitable construction that often involved lawmaking); Manning, Equity, supra note 4, at 22, 30–56 (demonstrating that “the equity of the statute” doctrine began in the fourteenth century and did not begin to recede until the late eighteenth century). 70 Courts created and developed the vast majority of English law, even in areas that we think of as quintessentially public, like criminal law. This common law received its most comprehensive and lucid treatment in Blackstone’s Commentaries. 71 See Manning, Equity, supra note 4, at 46–47. 72 See 1 WILLIAM BLACKSTONE, COMMENTARIES *91 (noting the absence of judicial review). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 137 interpretive discretion had to be limited by legal principles.73 Indeed, even in developing common law, courts had to apply precedent74 and could be overruled by Parliament, which was sovereign and hence had final lawmaking power.75 Respect for Parliament’s supremacy dictated that its statutes be enforced as written, despite judicial misgivings about their wisdom.76 Blackstone declared that “[t]he fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time the law was made, by signs the most natural and probable.”77 He then discussed five such “signs,” with the ordinary meaning of the statute’s words being the touchstone:

1. Words are generally to be understood in their usual and most known signification . . . their general and popular use . . . . [But] terms of art, or technical terms, must be taken according to the acceptance of the learned in each art, trade, and science . . . . 2. If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the . . . preamble . . . is often called in to help the construction of an act of [P]arliament. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point. . . . 3. As to the subject matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. . . .

73 Pushaw, Case/Controversy, supra note 67, at 475–79 (citing Blackstone and other British authorities). 74 Stare decisis obligated courts to adhere to precedent, so established common law rules had to be applied faithfully, although they could be gradually adjusted to meet changing facts and circumstances. See id. at 477–78. 75 See supra note 63 and accompanying text. 76 See 1 BLACKSTONE, supra note 72, at *59–62. As Lord Justice Mansfield cautioned, statutes had to be construed “according to their true intent and meaning,” even if a court disagreed with the underlying policy. Foone v. Blount, 98 Eng. Rep. 1188, 1900 (K.B. 1776). 77 1 BLACKSTONE, supra note 72, at *59. 138 GEORGIA LAW REVIEW [Vol. 51:121

4. As to the effects and consequence, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore . . . [a criminal law that punished] “whoever drew blood in the streets” . . . was held . . . not to extend to the surgeon who opened the vein of a person that fell down in the street . . . . 5. But, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when the reason ceases, the law ought likewise to cease with it.78

This fifth method, called “equity,” recognized that courts, when applying a general statute to unusual particular circumstances, had some discretion to diverge from the letter of the law to honor its reason, spirit, and motivating purpose.79 Blackstone admonished, however, that

the liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the common good, than equity without law: which would make every judge a legislator, and introduce the most infinite confusion; and there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiments in the human mind.80

Overall, Blackstone maintained that a statute should be interpreted fairly by enforcing its words according to their

78 Id. at *59–61. 79 Id. at *61–62, 91; 3 id. at *430–31. 80 See 1 id. at *62; see also id. at *91 (“No court has power to defeat the intent of the legislature, when couched in such evident and express words, as to leave no doubt concerning its intention.”). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 139 everyday usage, except for “technical terms.”81 Only if the language was “dubious” could a judge exercise equitable discretion, albeit restrained, to consider the law’s context, subject matter, consequences, and “reason and spirit.”82 Reinforcing the new text-centered approach, the King’s Bench preserved the integrity of Parliament’s enactments by forbidding courts from considering legislative history.83 Admittedly, some judges in England and its colonies persisted in exercising equitable interpretive discretion, reflecting the common law tendency to cling to doctrines even after the historical conditions that produced them have disappeared.84 Nevertheless, by 1787 Blackstone’s textualism had become the norm. 2. America’s Constitution and the Presumption of Textualism. Blackstone’s Commentaries quickly became America’s legal bible.85 His approach to statutory interpretation took root, and even the vestiges of equitable construction that he recognized could not survive adoption of the Constitution.86 Its drafters obviously could not follow the British model of (1) a lower legislative house that nominally represented ordinary citizens but was dominated by

81 Id. at *60. 82 Id. at *60–61. John Manning suggests that Blackstone followed English tradition by approving “the equity of the statute.” Manning, Equity, supra note 4, at 25, 35–36. In 1994, I expressed a similar view. See Pushaw, Case/Controversy, supra note 67, at 476–77. Further study of Blackstone, however, has persuaded me that he actually recommended enforcement of the “plain meaning” of disputed statutory words, with consideration even of context (much less “reason and spirit”) permissible only as a last resort when the language was unclear. See supra notes 73–80 and accompanying text. Moreover, however one reads Blackstone, equitable construction was clearly on the wane by 1787. See Manning, Equity, supra note 4, at 53–56 (demonstrating that English courts gradually turned away from this doctrine in the eighteenth century and formally renounced it during the first half of the nineteenth century). 83 See, e.g., Millar v. Taylor, 98 Eng. Rep. 201, 217 (K.B. 1769). 84 Manning, Equity, supra note 4, at 52–56; see also id. at 61–66, 70 (describing how the lack of independence of colonial and early state courts from political pressure led to disastrous results for legal rights). Other factors that might explain this hangover include the continued (although greatly reduced) overlap between judicial and legislative power and the perceived need to correct Parliament’s poor drafting. Id. at 53; see also Pushaw, Inherent Powers, supra note 53, at 816–21 (discussing judicial practice in the colonies and pre-constitutional state governments, which included the assertion of broad inherent powers that reflected the British mixture of powers). 85 See DANIEL J. BOORSTIN, THE MYSTERIOUS SCIENCE OF THE LAW 1–2 (1941). 86 See U.S. CONST. art. I, § 7. My constitutional arguments for textualism draw heavily from SCALIA & GARNER, supra note 1, at xxviii–xxx, 3–6, 23–24, 82–83, 96, 138–39, 243–46, 348, 369–96; and Manning, Equity, supra note 4, at 56–105, 126–27. 140 GEORGIA LAW REVIEW [Vol. 51:121 hereditary aristocrats; (2) an upper chamber consisting entirely of such nobles that also served as a high court; (3) a hereditary monarch with an absolute veto; and (4) judges who were part of the executive branch, helped write legislation, and possessed extensive common lawmaking authority.87 Rather, the Framers exhibited a far greater commitment to democracy, separation of powers, and the rule of law.88 They relocated sovereignty from the legislature to “We the People;” sharply separated legislative, executive, and judicial power and entrusted each to an independent branch; and confined the reach of such powers to carefully enumerated subjects, thereby limiting discretion.89 Article I vests “legislative power” in a Congress that was chosen democratically, either directly (the House) or indirectly (the Senate).90 Article I requires lawmaking through a difficult process of agreement by both chambers of Congress and an elected President, who can either sign the legislation or veto it (subject to a two-thirds congressional override).91 This rigorous procedure ensures that only politically accountable officials make laws that reflect thoughtful deliberation and careful drafting.92 Bicameralism and presentment also enable political minorities (especially the smaller states, which enjoy disproportionate representation in the Senate) to protect themselves against self- interested majorities by blocking legislation, thereby requiring compromises to get statutes passed.93 Logically, the enacted statute had to convey its ordinary meaning, because otherwise voters could not hold their representatives responsible and political minorities would lose their clout.

87 See Pushaw, Inherent Powers, supra note 53, at 740–41, 799–816, 823, 825–27; Pushaw, Justiciability, supra note 45, at 400–07, 410–11. 88 See Pushaw, Inherent Powers, supra note 53, at 739–41, 823–31; Pushaw, Justiciability, supra note 45, at 397–98, 403–04, 411–35; Manning, Equity, supra note 4, at 56–70. 89 See Pushaw, Inherent Powers, supra note 53, at 741, 744–45, 823–31, 867; Pushaw, Justiciability, supra note 45, at 397–98, 410–35; Manning, Equity, supra note 4, at 56–70. 90 U.S. CONST. art. I, § 2, cl. 3; § 3, cls. 1–2. See Pushaw, Inherent Powers, supra note 53, at 739, 746, 784, 829–31; Pushaw, Justiciability, supra note 45, at 414–16. 91 U.S. CONST. art. I, § 7. 92 See AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 41–42, 58–60, 190, 237–38 (2005); Manning, Equity, supra note 4, at 70–78; John F. Manning, Textualism as a Nondelegation Doctrine, 97 COLUM. L. REV. 673, 675–76, 689, 695–97, 704–10, 714–18, 722, 725, 739 (1997) [hereinafter Manning, Textualism]. 93 Manning, Equity, supra note 4, at 72–78. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 141

Furthermore, the Framers severely curtailed the blending of basic government powers. For example, unlike Parliament, Congress had no executive or judicial authority, except in the narrow area of impeachment.94 Similarly, Article II granted the President alone “executive” power to administer the law and no share in any other power, except for the veto.95 Finally, Article III vested “judicial power” in independent judges who—in contrast to their English forebears—had no role in making or executing the law and had far more circumscribed discretion.96 To preserve Article I’s democratic legislative framework, federal courts had to fairly interpret the text of statutes as written and commonly understood.97 To assert discretion to deviate from a statute’s semantic meaning would transcend judicial bounds, usurp Congress’s legislative power, and upset the bargains reached during the bicameralism and presentment process.98 Indeed, the Convention rejected a proposed Council of Revision (a panel composed of Justices and Cabinet officials) to review legislation precisely to ensure that the courts’ power to impartially expound federal statutes would be severed from Congress’s power to make laws.99

94 Pushaw, Inherent Powers, supra note 53, at 746, 823, 829–31; Pushaw, Justiciability, supra note 45, at 429–30; Manning, Equity, supra note 4, at 57–61. 95 See Pushaw, Inherent Powers, supra note 53, at 826–27. Although Congress has no “executive” power to enforce the law, and the President lacks “legislative” authority to make law, the Constitution does require the President and Congress to share certain other powers such as conducting military and foreign affairs and appointing federal officers and judges. See Pushaw, Justiciability, supra note 45, at 416–21, 428–31; Robert J. Pushaw, Jr., The “Enemy Combatant” Cases in Historical Context: The Inevitability of Pragmatic Judicial Review, 82 NOTRE DAME L. REV. 1005, 1017–23 (2007). 96 See Pushaw, Inherent Powers, supra note 53, at 739–43, 746, 826–28, 830–31, 844–48, 854; Pushaw, Justiciability, supra note 45, at 417–27, 431–34; Manning, Equity, supra note 4, at 58–61, 66–70; Robert J. Pushaw, Jr., Congressional Power Over Federal Court Jurisdiction: A Defense of the Neo-Federalist Interpretation of Article III, 1997 BYU L. REV. 847, 851, 856–63, 894–96. The only exception is that courts sometimes must make law interstitially when necessary to decide a justiciable case (such as in resolving controversies between states), which Congress can later override. Pushaw, Inherent Powers, supra note 53, at 746–47, 850. 97 See SCALIA, supra note 1, at 9–37; SCALIA & GARNER, supra note 1, at 3–7, 369–90; Manning, Second-Generation, supra note 2, at 1304–07. 98 See Manning, Equity, supra note 4, at 56–60, 66–77, 102, 126–27. 99 See Pushaw, Inherent Powers, supra note 53, at 827 n.492 and accompanying text; Pushaw, Case/Controversy, supra note 67, at 490–91; Manning, Equity, supra note 4, at 59– 60 n.237 and accompanying text. 142 GEORGIA LAW REVIEW [Vol. 51:121

In sum, the Constitution’s structure supports textualism. Although the Convention and Ratification debates contain little explicit discussion of statutory interpretation, leading Federalists followed a text-centered approach.100 For example, James Wilson, second only to James Madison in influencing the Constitution’s drafting and adoption,101 approvingly cited Blackstone’s textualist method of construing statutes.102 Likewise, Alexander Hamilton asserted that “whatever may have been the intention of the framers of . . . a law, that intention is to be sought for in the instrument itself . . . .”103 He stressed that democracies produce “a voluminous code” and that judges, in interpreting it, must abide by “strict rules and precedents” to avoid “an arbitrary discretion”: “The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would . . . be the substitution of their pleasure to that of the legislative body.”104 Similarly, Madison argued that “a law [must] be fixed in its meaning and operation.”105 Finally, members of Congress embraced textualism,106 as did leading treatise writers.107

100 See Manning, Equity, supra note 4, at 78–105 (arguing that this early history reveals a consensus, albeit not unanimity, favoring construction according to a statute’s terms rather than through the exercise of equitable discretion); John F. Manning, Deriving Rules of Statutory Interpretation from the Constitution, 101 COLUM. L. REV. 1648, 1666–72 (2001) [hereinafter Manning, Deriving] (contending that the Constitution’s norms of statutory construction must be inferred from its structure). 101 RALPH KETCHAM, JAMES MADISON: A BIOGRAPHY 229 (1971). 102 See 2 COLLECTED WORKS OF JAMES WILSON 924 (Kermit L. Hall & Mark David Hall eds., 2007) (stressing that courts were limited to discovering and enforcing a statute’s meaning and warning that equitable discretion “is not to be used, unless where the strongest and most convincing reasons appear for using it”); see also 1 id. at 438 (similar); id. at 705–06 (sharply distinguishing judicial from legislative power and declaring that “arbitrary” judicial decisions “guided and impelled by considerations of policy [rather than law] . . . inflict the deepest and most deadly wounds”); 2 id. at 953 (“[E]very prudent and cautious judge . . . will remember . . . that his duty . . . [is] not to make the law, but to interpret and apply it.”). 103 See 8 THE PAPERS OF ALEXANDER HAMILTON 111 (Harold C. Syrett ed., 1965) (citing Hamilton’s 1791 opinion on the Bank of the United States). 104 See THE FEDERALIST NO. 78, at 526, 529 (Alexander Hamilton) (Jacob E. Cooke ed., 1961); see also THE FEDERALIST NO. 81, at 545–46 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (conceding that there would be occasional “misconstructions and contraventions of the will of the legislature,” but maintaining that judges who frequently did so would be impeached). 105 See 9 THE WRITINGS OF JAMES MADISON 443 (Gaillard Hunt ed., 1910) (reprinting an 1821 letter). 106 See SCALIA & GARNER, supra note 1, at 370 (showing that Congressmen shared the view that their handiwork should be interpreted based on its text, not legislative history). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 143

Consistent with the original understanding, the Supreme Court recognized that the Constitution imposed limits on “judicial power” not found in England.108 Most pertinently, the Justices almost always interpreted statutes according to the ordinary meaning of their text.109 It was not until the 1940s that the Court shifted to pragmatism. It then began to revert to textualism in the late 1980s. These eras will be examined in turn. 3. The Early Court’s Embrace of Textualism. From 1789 to 1800, the Justices typically took a textualist approach without delving into its underlying constitutional theory.110 For instance, James Wilson, appointed to the inaugural Court, read a statute imposing a filing deadline of six “months” in its ordinary sense of calendar months, not shorter lunar months.111 Likewise, he concluded that Congress, by requiring that state records be given full faith and credit “in every court within the United States,” had “declar[ed] in direct terms” that all federal courts (including the

107 See, e.g., JAMES KENT, COMMENTARIES ON AMERICAN LAW 432 (New York, O. Halstead 1826) (“The words of a statute are to be taken in their natural and ordinary signification and import; and if technical words are used, they are to be taken in a technical sense.”); 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 411 (Boston, Hilliard, Gray Co. 1833) (arguing that courts could never disregard “the plain meaning of a [statutory] provision, not contradicted by any other provision . . . because we believe the framers of that instrument could not intend what they say,” except “where the absurdity and injustice of applying the provision to the case would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application”). 108 For example, the political branches could not require federal judges to publicly render legal advice outside the confines of litigation. See Letter from the Justices of the Supreme Court to President George Washington (Aug. 8, 1793), reprinted in STEWART JAY, MOST HUMBLE SERVANTS: THE ADVISORY ROLE OF EARLY JUDGES app. at 179–80 (1997). Under the Constitution’s separation-of-powers system, Article II authorized the President to obtain written opinions from his executive subordinates, whereas Article III allowed federal courts to issue legal opinions only when necessary after the executive had acted and a lawsuit had arisen. Id. Similarly, when a court decided a litigated case, its judgment could not be reviewed or revised by Congress or the President. See Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n.1 (1792); see also Robert J. Pushaw, Jr., Why the Supreme Court Never Gets Any “Dear John” Letters: Advisory Opinions in Historical Perspective, 87 GEO. L.J. 473 (1998) (book review) (contending that these decisions properly applied new constitutional principles). 109 See Manning, Equity, supra note 4, at 85–102. 110 The first four United States Reports (1789–1800) consist mainly of the opinions of Justices sitting on circuit courts, as required by the Judiciary Act of 1789, ch. 20, 1 Stat. 73. 111 Brudenell v. Vaux, 2 U.S. (2 Dall.) 302, 302 (1794). 144 GEORGIA LAW REVIEW [Vol. 51:121

Supreme Court) fell within that mandate.112 Many other examples could be adduced.113 Occasionally, however, the Justices elaborated upon textualism’s constitutional underpinnings. Most notably, Justice Chase criticized English courts for “assum[ing] a legislative power . . . on the pretence of judicial exposition,” especially by equitably construing statutes in light of their broad “intent” to depart from their linguistic meaning.114 He contrasted America’s constitutional courts, which had “a duty to conform . . . to the letter of the statute, when free from ambiguity and doubt; without indulging a speculation, either upon the impolicy, or the hardship, of the law.”115 The Marshall Court (1801–1835) decisively embraced textualism.116 For instance, when asked to equitably interpret a clearly worded statute to avoid unfairness and promote Congress’s “scheme of policy,” Chief Justice Marshall responded that Congress alone had “the power of deciding on the justice as well as wisdom of measures . . . on which they have the constitutional

112 Armstrong v. Carson’s Ex’r, 2 U.S. (2 Dall.) 302, 302–03 (1794) (emphasis added). 113 See, e.g., Bas v. Tingy, 4 U.S. (4 Dall.) 37, 45–46 (1800) (Paterson, J.) (concluding that the words of a federal statute, which limited prize captures to ships of America’s “French” enemy, was “decisive on the subject of legislative intention”); Wilson v. Daniel, 3 U.S. (3 Dall.) 401, 404–05 (1798) (holding that “the common understanding” of the “descriptive words” in the federal Judiciary Act, which authorized Supreme Court jurisdiction on a writ of error when “the value of the matter in dispute” exceeded $2000, was the value of the property demanded in the complaint, not the amount of the judgment below); Georgia v. Brailsford, 3 U.S. (3 Dall.) 1, 1–4 (1794) (interpreting a state statute requiring “sequestration” of debts owed English creditors during the Revolutionary War according to its ordinary definition—temporarily holding property until the war had ended, not confiscating the money and vesting it in the state). In Collet v. Collet, 2 U.S. (2 Dall.) 294 (1792), Justice Wilson relied on “the act of Congress itself”—which provided that no one “shall be admitted a citizen . . . except by an act of the Legislature of the State”—as generally granting states concurrent authority to naturalize a citizen. Id. at 296 (emphasis omitted). It apparently did not occur to the Court, a la King, to construe “State” to mean “Federal Government”—for example, to achieve the larger purpose of safeguarding Congress’s plenary constitutional power over naturalization. See infra Part III.D (discussing the King decision). 114 Priestman v. United States, 4 U.S. (4 Dall.) 28, 30–31 n.1 (1800). 115 Id. Similarly, Justice Wilson held that although Congress may have intended to give federal courts jurisdiction over a case, the statute’s words excluded that jurisdiction in “unqualified terms” by “any reasonable interpretation.” Ketland v. The Cassius, 14 F. Cas. 431, 433 (C.C.D. Pa. 1796) (No. 7,743). Although the Justices usually adhered to textualism, there were a few exceptions. See Manning, Equity, supra note 4, at 87 n.338 and accompanying text (citing two examples). 116 See Manning, Equity, supra note 4, at 89–102. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 145 power to act. Wherever, then, their language admits of no doubt, their plain and obvious intent must prevail.”117 The Court emphasized that the statute as a whole might illuminate the meaning of unclear individual provisions, but could never contradict unambiguous language. For example, United States v. Fisher118 involved a statute providing that “where any revenue officer, or other person . . . becom[es] indebted to the United States” and goes bankrupt, that debt “shall be first satisfied.”119 The Court held that Congress had plainly granted the United States priority in collecting on its debts from “any person”—including private citizens—and therefore rejected the argument that the Act’s title and other provisions indicated a background purpose of regulating only debtors who had received federal money in connection with their official duties.120 The Court had to enforce statutory “terms [that] leave no doubt in the mind when the words are taken in their ordinary sense” and could not consider any unfortunate consequences or “inconvenience[s]”— matters left to Congress.121 To similar effect is Osborn v. Bank of the United States,122 which focused on two key provisions in the Act of Congress creating the national bank. First, the statute clearly conferred jurisdiction:

These words . . . admit of but one interpretation. They cannot be made plainer by explanation. They give, expressly, the right “to sue and be sued,” “in every Circuit Court of the United States,” and it would be difficult to substitute other terms which would be more direct . . . .123

117 Evans v. Jordan, 8 F. Cas. 872, 873 (C.C.D. Va. 1813) (4,564), aff’d, 13 U.S. (9 Cranch) 199 (1815); see also United States v. Palmer, 16 U.S. (3 Wheat.) 610, 630 (1818) (“[W]hen the legislature manifests [its] clear understanding . . . with its words, courts are bound by it.”); United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 94–96 (1820) (same); Schooner Paulina’s Cargo v. United States, 11 U.S. (7 Cranch) 52, 60–61 (1812) (same). 118 6 U.S. (2 Cranch) 358 (1805). 119 Id. at 385 (citation omitted). 120 Id. at 386–90. 121 Id. at 389–90. 122 22 U.S. (9 Wheat.) 738 (1824). 123 Id. at 817. 146 GEORGIA LAW REVIEW [Vol. 51:121

Second, the statute necessarily implied that Congress had exempted its bank from state taxation, just as many similar laws had been read as implicitly protecting federal instrumentalities (like the post office) from state interference:

If the sound construction of the act be, that it exempts the trade of the Bank . . . from the control of the States, Courts are as much bound to give it that construction, as if the exemption had been established in express terms. Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature . . . .124

The Marshall Court diverged from the most natural meaning of the statutory text only in rare circumstances when doing so would subvert Congress’s obvious intent:125 “[T]he plain meaning of a provision” could be disregarded only when its application would result in “absurdity and injustice . . . so monstrous, that all mankind would, without hesitation, unite in rejecting the application.”126 The rest of the Marshall Court, most importantly Justice Story, adopted the same textualist approach.127

124 Id. at 866. 125 See Manning, Equity, supra note 4, at 99–102 (citing cases); see also id. at 101–02, nn.390–91 (noting that a few lower federal courts persisted in invoking “the equity of the statute” and that the post-Marshall Court did so in 1845 and 1856). 126 Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 202–03 (1819). Although the Chief Justice expressly espoused a textualist methodology, he sometimes did not follow it. Most notably, in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), he dubiously interpreted Section 13 of the Judiciary Act of 1789 as conferring original jurisdiction on the Court to issue mandamus writs, which enabled him to hold that this provision exceeded Article III bounds (and hence assert judicial review power). See Pushaw, Justiciability, supra note 45, at 444–46 (explaining this point); William N. Eskridge, Jr., All About Words: Early Understandings of the “Judicial Power” in Statutory Interpretation, 1776–1806, 101 COLUM.

2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 147

4. A Century of Textualism. The Taney Court (1836–1864) continued this mode of statutory interpretation.128 In fact,

L. REV. 990, 1071 (2001) (assailing the Court’s reading of Section 13 as “textually indefensible”). The Marshall Court’s occasional deviations from textualism, however, do not negate its overall commitment to this methodology in both theory and practice. See Manning, Deriving, supra note 100, at 1678–80. 127 See supra note 107 and accompanying text (citing Story’s treatise); see also Mitchell v. Great Works Milling & Mfg. Co., 17 F. Cas. 496, 498–99 (C.C.D. Me. 1843) (No. 9,662) (“We are bound to interpret the act as we find it, and to make such an interpretation as its language and its apparent objects require. We must take it to be true, that the legislature intend precisely what they say. . . .”). For similar sentiments, see, e.g., Pennock v. Dialogue, 27 U.S. (2 Pet.) 1, 21 (1829); Conard v. Atlantic Ins. Co., 26 U.S. (1 Pet.) 386, 439 (1828); The Schooner Adeline, 13 U.S. (9 Cranch) 244, 287 (1815). Other Marshall Court Justices also adhered to textualism. See, e.g., Evans v. Jordan, 13 U.S. (9 Cranch) 199, 202–03 (1815) (Washington, J.). My historical evidence undermines Professor Eskridge’s claim that Article III “judicial power,” as originally understood, included inherent equitable discretion to depart from the semantic meaning of a statute’s text when necessary to achieve justice, such as promoting consistency with a statute’s overall purposes and with general legal principles. See Eskridge, supra note 126, at 992–1106; see also Manning, Equity, supra note 4, at 22–27 (citing historical work by Eskridge and other scholars). Concededly, before the eighteenth century, English and American courts routinely invoked “the equity of the statute,” a common law doctrine that developed when judicial, executive, and legislative powers were mingled. See supra notes 68–69, 84 and accompanying text. However, two fundamental constitutional changes in Britain—the Glorious Revolution (1688) and the Act of Settlement granting judges independence (1701)—led judges and theorists like Blackstone to formulate a new, text-centered approach to statutory interpretation, albeit with a trace of equitable discretion. See supra notes 63–84 and accompanying text. Even that vestige did not survive in America’s Constitution, which sharply separated “legislative,” “executive,” and “judicial” power and vested each in an independent institution. See supra notes 85–107 and accompanying text. Thus, Article III courts in exercising “judicial power” could not deviate from laws duly enacted under Article I by Congress with the President’s approval. See supra notes 96–109 and accompanying text. Admittedly, some Founders and early judges did not immediately grasp that textualist statutory interpretation flowed from the Constitution’s structure. See Eskridge, supra note 126, at 1044, 1060. Nonetheless, this point had become clear by the time of the Marshall Court. See supra notes 116–27 and accompanying text; see also Manning, Deriving, supra note 100, at 1648–80 (persuasively challenging Eskridge’s historical analysis and conclusions). 128 See, e.g., Aldridge v. Williams, 44 U.S. (3 How.) 9, 24 (1845) (“The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself; and we must gather their intention from the language there used . . . .”). The Court refused to consider “the construction placed upon [the statute] by individual members of Congress . . . [or their] motives or reasons.” Id. Rather, only when an “ambiguity exists” in the text could the Justices turn to other evidence, such as “laws upon the same subject” and “the public history of the times in which it was passed.” Id. Similarly, mid-nineteenth century treatise writers stressed that judges had to respect legislative supremacy by interpreting statutes according to their clear meaning, not invoke equitable construction to effectively amend these laws. See Manning, Equity, supra note 4, at 102–03 (citing sources). 148 GEORGIA LAW REVIEW [Vol. 51:121 textualism held sway well into the twentieth century.129 Most notably, Justice Holmes insisted that the interpretive touchstone was not Congress’s intent, but rather the meaning of a statute based on the most natural import of its words, read in context.130 Similarly, in the 1930s, Justice Cardozo stayed within “the borders of the statute” to determine its meaning; only “if the meaning be uncertain” would the Court be “at liberty . . . to have recourse to the legislative history.”131 For example, he enforced a federal statute providing that a “taxpayer” includes a trust by holding that losses to the trust could be deducted only by it, not by the

129 See Manning, Equity, supra note 4, at 103–04 n.397 and accompanying text (describing numerous illustrative cases from 1869 to 1910); SCALIA & GARNER, supra note 1, at 369–81 (demonstrating the dominance of textualism for the first 150 years of American history and applauding its resurgence over the past generation); Nicholas R. Parrillo, Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890–1950, 123 YALE L.J. 266, 271–87 (2013) (summarizing his exhaustive findings that American courts strictly adhered to textualism until the late nineteenth century, that use of legislative history became permissible (albeit rare) in the 1890s, and that it became routine around 1940). Cf. John F. Manning, What Divides Texualists from Purposivists?, 106 COLUM. L. REV. 70, 79 (2006) [hereinafter Manning, What Divides] (arguing that the Court traditionally applied a formal “plain meaning” approach to statutory interpretation that did not consider context, whereas modern textualists recognize that the meaning of words depends on the interpretive community’s shared linguistic conventions). 130 See Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 HARV. L. REV. 417, 419 (1899) (“We do not inquire what the legislature meant; we ask only what the statute means.”). For instance, he held for a unanimous Court that a federal law prohibiting the interstate transportation of a “motor vehicle” did not include airplanes. McBoyle v. United States, 283 U.S. 25, 26–27 (1931). Justice Holmes conceded that “[e]tymologically it is possible to use the word [vehicle] to signify a conveyance working on land, water or air” but concluded that “in everyday speech ‘vehicle’ calls up the picture of a thing moving on land.” Id. at 26. Turning to context, he noted that all of the vehicles “carefully enumerate[d]” (automobile, truck, and motorcycle) before the catch-all phrase “motor vehicle” suggested “a vehicle in the popular sense, that is a vehicle running on land . . . not something . . . that flies. . . . [It is] a term that usage . . . precisely confines . . . .” Id. at 26–27. Finally, Holmes stressed that the Court should construe “the text of the law . . . in language that the common world will understand,” not rewrite it: When a rule . . . is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the statute should not be extended to aircraft simply because it may seem to us that a similar policy applies, or upon the speculation that if the legislature had thought of it, very likely broader words would have been used. Id. at 27. 131 United States v. Great N. Ry., 287 U.S. 144, 154 (1932); see also Fox v. Standard Oil Co. of N.J., 294 U.S. 87, 95 (1935) (holding that (1) gas stations fell squarely within a tax statute’s broad definition of “store” as “any mercantile establishment . . . in which goods, wares, or merchandise of any kind . . . are sold,” and (2) this definition had to be enforced, even if an average person would not think of a gas station as a “store”). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 149 human taxpayer affected by the loss.132 The Court refused “to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason. We take the statute as we find it.”133 The foregoing survey reveals that the Court typically adhered to a textualist approach. Nonetheless, as Blackstone recognized, judicial discretion in statutory construction could sometimes be abused.134 Most infamous is Church of the Holy Trinity v. United States, which involved a statute prohibiting “the importation or migration, of . . . foreigners . . . under contract or agreement . . . to perform labor or service of any kind in the United States,” with exceptions for certain artistic and professional jobs but not for clergy.135 The Court conceded that the church had violated the express terms of this law by contracting with an English minister,136 but asserted that Congress did not intend for its statute to be applied in this situation: “It is a familiar rule that a thing may be within the letter of the statute and yet not . . . within its spirit nor within the intention of its makers.”137 To support that rule, however, the Court relied upon irrelevant sixteenth century English authorities,138 inapposite American cases,139 debatable legislative history,140 and America’s status as a Christian nation.141

132 Anderson v. Wilson, 289 U.S. 20, 26–27 (1933). 133 See id. at 27; see also Burnet v. Guggenheim, 288 U.S. 280, 285–87 (1933) (Cardozo, J.) (interpreting a statute that taxed transfers by “gift” as applying to transfers by trust deeds that reserved a power of revocation to the grantor only when that power had been surrendered, not when the trust was created). 134 See supra notes 80–82 and accompanying text. 135 143 U.S. 457, 458 (1892) (citing statute). 136 Id. 137 Id. at 459. 138 See id. at 458–59 (citing Plowden and Coke). These legal thinkers, who wrote in the late 1500s and early 1600s to justify the vast discretion of English common law courts, have little relevance to a Supreme Court strictly limited by the written American Constitution. See supra notes 86–109 and accompanying text. 139 The Court cited cases in which a statute’s literal application would have generated absurd results. See Holy Trinity, 143 U.S. at 459–63 (citing, e.g., United States v. Kirby, 74 U.S. (7 Wall.) 482 (1868) (ruling that a state officer executing a warrant for the arrest of a mail carrier who had been indicted for murder could not be prosecuted under an Act of Congress prohibiting the willful obstruction of mail carriers)). Such truly absurd outcomes must be distinguished from those that the Justices find unpalatable. 140 Id. at 463–65 (concluding that Congress intended to control only unskilled laborers). The Court’s foray into legislative history does not explain why Congress (1) included

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In certain instances, then, the Court engaged in naked judicial legislation. More commonly, however, when the Court departed from textualism, it followed standard pragmatism: reaching what it perceived to be the most sensible result by reading the words of a statutory provision in light of its drafters’ express or implied intent, their overall purpose, and precedent interpreting similar language.142 During America’s first century and a half, cases taking a standard pragmatic approach did little damage because (1) there were few of them; (2) the Court strictly limited Congress’s power to subjects of genuine interstate and international importance; (3) Congress’s output was small enough that it could effectively monitor executive and judicial constructions of its laws; and (4) legislative history reflected Congress’s actual proceedings.143 All of that changed in the 1930s. 5. The Court’s Retreat from Textualism. The New Deal revolutionized the legislative process and statutory interpretation. Starting in 1937, the Court abandoned limits on Article I and allowed Congress to regulate a host of matters formerly reserved to the states, such as labor, agriculture, and banking.144 The statutory explosion meant that congressmen had neither the time nor the expertise to exercise their lawmaking power carefully. Instead, they issued broad policy directives to their staffs, who in turn depended heavily on the mushrooming executive branch

foreigners who performed not only labor but also “service of any kind,” or (2) excluded several types of skilled professional and artistic jobs, but not clergy. 141 Id. at 465–72. 142 See Manning, Equity, supra note 4, at 104–05 (noting that the Court justified any departures from the text as faithfully implementing Congress’s true intent, not as exercises of equitable discretion). Anglo-American courts have always relied heavily on prior cases, even in areas like statutory interpretation that lie outside traditional common law subjects. See THE FEDERALIST NO. 78, at 529 (Alexander Hamilton) (Jacob E. Cooke ed., 1961); see also Posner, supra note 5, at 807–08 (contending that judges have long placed primacy emphasis not on a statute’s words, but rather on case law interpreting that legislation or similar language in other statutes). 143 See SCALIA, supra note 1, at 30–36; Manning, Textualism, supra note 92, at 685–92. 144 See Grant S. Nelson & Robert J. Pushaw, Jr., Rethinking the Commerce Clause: Applying First Principles to Uphold Federal Commercial Regulations but Preserve State Control Over Social Issues, 85 IOWA L. REV. 1, 84–89, 119–22 (1999) (summarizing these cases and the underlying legislation). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 151

(especially administrative agencies) to write detailed statutes.145 Executive officials also helped craft elaborate legislative histories, which were designed more to influence later judicial interpretations than to capture House or Senate proceedings accurately.146 Moreover, federal lawmakers often avoided hard choices by using general language and delegating to agencies the job of promulgating and implementing regulations.147 Congress found it increasingly difficult to keep track of these regulations148 or the numerous everyday expositions of its statutes by the executive branch and judiciary.149 Most significantly for present purposes, by the early 1940s Roosevelt had appointed to the Court eight Progressives who believed that statutes and legal doctrines were indeterminate and that, in interpreting them, a judge inevitably made policy choices.150 These Justices abandoned text-centered formalism and instead focused on reaching a sound policy result after detailed consideration of legislative history.151

145 See Parrillo, supra note 129, at 281–82, 315, 320, 333, 337–41, 348–49, 367, 374 (showing that Congress did not dramatically increase the size of its staff until the late 1940s, and before then relied heavily on the executive branch—particularly the Department of Justice and administrative agencies—to draft statutes and legislative history). 146 See id. at 281–85, 315, 333–42, 349–51, 367–76. For example, agencies often ghost- wrote Congress’s committee reports and floor speeches (or statements inserted into the record later) that could be cited by a court as evidence of the statute’s meaning. See id. at 269, 282, 324–26, 337–41, 385. For criticism of such manipulation of legislative history, see SCALIA, supra note 1, at 32–36. 147 See Parrillo, supra note 129, at 281–85, 333; see also Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1239–41 (1994) (asserting that this broad delegation violates separation of powers). 148 See JAMES L. BUCKLEY, SAVING CONGRESS FROM ITSELF, at xi–xvi (2014). 149 See Posner, supra note 5, at 803. 150 See Parrillo, supra note 129, at 280–81, 300–02, 305–06, 314–15, 345, 349. 151 See id. at 275–80, 287–300 (presenting quantitative evidence and contemporaneous commentary proving that the Court’s use of legislative history suddenly spiked around 1940 and then continued to rise gradually); see also id. at 300–15 (connecting the new Justices’ Legal Realist perspective on adjudication to their embrace of legislative history). Usually, the Justices would marshal legislative history to establish Congress’s general intent, then creatively determine how best to achieve that overall objective in light of the facts, regardless of the wording or particular intent behind the statutory provision at issue. See, e.g., United States v. American Trucking Ass’ns, 310 U.S. 534, 543–44 (1940) (declaring that “however clear the [statute’s] words may appear,” the Court could consider legislative history whenever application of the plain meaning rule produced not only absurd results (the longstanding rule), but also outcomes that were “unreasonable” in light of Congress’s overall purpose and policy); see also Parrillo, supra note 129, at 303–09, 350–51 (describing this mode of analysis, which later became known as “purposivism”). Sometimes, however,

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Of course, in the few days the Justices had to decide each case, they could not possibly read this entire history (often thousands of pages long and scattered in various sources) and master complex statutory schemes, which typically involved specialized subjects.152 Rather, the Court relied for its understanding on the Justice Department (which increased fivefold between 1930–1942) and the similarly burgeoning administrative state, both of which were involved in most statutory litigation.153 These executive officials had the unique institutional capacity—the legal personnel and resources, expertise on specific statutes, sophistication about Congress’s processes, and ability to monitor its huge output—to systematically research and brief legislative history and to translate it into arguments intelligible to generalist judges.154 Justices Frankfurter and Jackson initially embraced legislative history, but by the late 1940s expressed fear that the Court was no longer exercising the “judicial power” of interpretation (i.e., ascertaining a statute’s meaning), but rather was implementing the views of a privileged cadre of executive bureaucrats and elite lawyer-lobbyists.155 Ignoring such concerns, the other Justices continued to use legislative history as their main interpretive the Court would mine the legislative record to determine that provision’s likeliest specific intended meaning and application. See id. at 310–13, 351 (citing examples). 152 See Parrillo, supra note 129, at 281–82, 324–28. 153 See id. at 281–82, 316–19, 328–42, 346–48. 154 See id. at 280–82, 315–52, 367 (establishing this point with ample evidence). Thus, legislative history originated as a statist tool of interpretation, delivered by the administrative bureaucracy to promote its views clothed with the authority of Congress. Id. at 284, 367–76. Non-government lawyers did not have the resources to provide exhaustive analyses of legislative history. Id. at 315–37, 346–52. Gradually, however, elite corporate lawyer-lobbying firms emerged to influence the drafting of regulatory statutes and legislative history and to use that history in litigation. Id. at 285, 352–61, 368–69, 379–81. Finally, the Court itself increased its internal capacity to research legislative history by hiring more and better-qualified clerks, deciding fewer cases, and obtaining information from the Justice Department or agencies (often informally). See id. at 283–85, 361–66, 368, 376; see also id. at 368, 376–79 (arguing that, although the Justices were generally friendly to agency views, they gradually acquired some ability to use legislative history independently and therefore provide meaningful judicial review of agency action). 155 See, e.g., Shapiro v. United States, 335 U.S. 1, 46–48 (1948) (Frankfurter, J., dissenting); Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 396 (1951) (Jackson, J., concurring); see also United States v. Pub. Utils. Comm’n, 345 U.S. 295, 319 (1953) (Jackson, J., concurring) (faulting the majority for engaging in “psychoanalysis of Congress” by poring over legislative history instead of interpreting a statute’s text); Parrillo, supra note 129, at 285, 299–300, 382–88 (discussing the misgivings of Justices Frankfurter and Jackson). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 153 tool.156 Unsurprisingly, the Court often disregarded a statute’s words and instead reached a perceived optimal policy result by considering non-textual evidence of Congress’s intent and purpose (including the legal and political background that gave rise to the legislation), as well as precedent addressing similar laws and practical factors.157 These ad hoc decisions cried out for a unifying theory. Henry Hart and Albert Sacks provided one, called “purposivism.”158 They maintained that courts should (1) use text and legislative history to discern Congress’s general purpose, based on the assumption that it intelligibly pursues reasonable policy goals to benefit the public, and (2) construe all statutory provisions in light of how a reasonable person would promote that overall scheme, even if doing so requires departing from their ordinary meaning.159 But as public choice scholars began to show in the 1960s, legislators must balance an array of interests, are strongly influenced by private groups seeking to redistribute wealth in their favor, and therefore produce statutes that often have multiple purposes and

156 The Court’s use of legislative history increased gradually from 1940 to 1970, then significantly from 1970 to 1985. See Parrillo, supra note 129, at 275–80, 389. 157 A representative example is Flora v. United States, 362 U.S. 145 (1960). Flora concerned a tax code provision granting federal district courts jurisdiction over “[a]ny civil action . . . for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected . . . or any sum alleged to have been excessive or in any manner wrongfully collected.” Id. at 148–49 (citing statute). This provision clearly empowered federal courts to hear taxpayer suits for a refund of “any” tax or sum alleged to have been wrongly collected by the IRS. Nonetheless, Chief Justice Warren and four colleagues implied an exception—that full payment of a wrongful assessment had to be made before invoking this jurisdiction, so that a taxpayer who had made only a partial payment could not proceed. Id. at 146–78. The Court based this holding on a short review of the statute’s language (id. at 148–51), an exhaustive examination of its legislative history (id. at 151–58), Congress’s implicit assumptions in providing for possible suit in the Tax Court (id. at 158–63), perceived inconsistency with another federal statute (id. at 161–65), assorted practical problems (id. at 165–67), attempts to downplay contrary pre-1940 administrative practice and lower court precedent (id. at 167–75), and assertions that taxpayers would not suffer undue hardship (id. at 175–77). Justice Whittaker sprinkled his dissenting opinion with references to the “plain,” “clear,” and “obvious self-explanatory meaning” of the statute: to allow taxpayer refund actions for “any” wrongfully collected tax or sum. Id. at 185, 193–94, 197 (Whittaker J., dissenting). He devoted most of his twenty-page opinion, however, to an analysis of history, precedent, and policy. See id. at 178–98. 158 See HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 1124–25, 1237, 1254, 1374–79 (tentative ed., 1958) (William N. Eskridge, Jr. & Philip E. Frickey eds., 1994). 159 Id. 154 GEORGIA LAW REVIEW [Vol. 51:121 do not necessarily reflect rational policy or promote the public good.160 Despite these problems, the Warren Court (1954–1969) routinely employed pragmatism, invariably to reach liberal results.161 The Burger Court (1969–1986) continued this freewheeling interpretive approach,162 although new conservative Republican appointees often clashed with liberal holdovers to produce ideological unpredictability, as a pair of 1979 cases illustrate.

160 Public choice theory might support the claim that independent federal judges should interpret statutes flexibly to achieve results that benefit the body politic. See William N. Eskridge, Jr., Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation, 74 VA. L. REV. 275 (1988). Richard A. Posner, Economics, Politics, and the Reading of Statutes and the Constitution, 49 U. CHI. L. REV. 263, 263–81, 288–91 (1982) [hereinafter Posner, Economics]. Alternatively, this theory might lead courts to adopt textualism, as they can never pinpoint a collective legislative “intent” from the chaotic lawmaking process and legislative history and therefore should simply interpret the text that the majority enacted. See Easterbrook, supra note 2, at 546; John F. Manning, Statutory Pragmatism and Constitutional Structure, 120 HARV. L. REV. 1161, 1161–63, 1168, 1170–71 (2007) [hereinafter Manning, Pragmatism] (citing sources). Professors Farber and Frickey later offered a more nuanced picture of legislators as influenced not simply by selfishness and special interest group pandering, but also by the preferences of their ordinary constituents, their ideology, and their sense of the public good. DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION 24–33, 46–62 (1991). Textualists then began to deemphasize their public- choice justification and instead focused on other rationales, such as preserving the Constitution’s formal lawmaking process by enforcing the statutory provisions that emerged from it. See Manning, Second-Generation, supra note 2, at 1288–1318. 161 See, e.g., Peyton v. Rowe, 391 U.S. 54, 55 (1968) (reversing longstanding precedent by concluding, on historical and policy grounds, that a federal statute authorizing habeas corpus for inmates “in custody in violation of the Constitution” applied to a man already being detained under one criminal sentence who sought to challenge a different sentence he was scheduled to serve in the future). The Warren Court’s result-oriented approach also applied to the Constitution. See Robert J. Pushaw, Jr., Partial-Birth Abortion and the Perils of Constitutional Common Law, 31 HARV. J.L. & PUB. POL’Y 519, 522–28, 577–91 (2008) [hereinafter Pushaw, Perils]. 162 Inverting the traditional approach, the Burger Court often turned to a statute’s text only after canvassing its legislative history. See Manning, Second-Generation, supra note 2, at 1291–92 (citing illustrative cases). Indeed, the Justices’ use of such history intensified from 1970–1985, for two reasons. First, all federal appellate courts feared that agencies had gained too much power and thus began to review their actions more aggressively. See Parrillo, supra note 129, at 389–90. Second, technological advances gradually made legislative history more accessible, thereby lessening the monopoly on it held by agencies and corporate lawyer-lobbyists and enabling their opponents to use it in representing parties such as consumers, environmental groups, and civil rights organizations. Id. at 390–91. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 155

In United Steelworkers v. Weber, Justice Brennan persuaded a majority of his colleagues to reject a literal reading of Title VII of the Civil Rights Act of 1964, which had made it “unlawful . . . for any employer . . . to discriminate against any individual because of his race . . . .”163 The Court upheld an affirmative action plan that concededly discriminated against white workers because of their race by invoking Congress’s broader intent, discovered in the legislative history, to help black employees.164 In dissent, Chief Justice Burger argued that the majority’s interpretation was “contrary to the explicit language of the statute . . . . [T]he Court effectively rewrites Title VII to achieve what it regards as a desirable policy result.”165 Furthermore, Burger and Justice Rehnquist showed that the Act’s sponsors and opponents had agreed that the law would help black workers in one specific way— by ending discrimination in employment practices—and did not allow for affirmative action, however socially beneficial it might be.166 Yet the dissenters’ protests rang hollow, because a few months earlier they had ignored a statute’s plain meaning to impose their preferred policy. In NLRB v. Catholic Bishop of Chicago, Chief Justice Burger (joined by Justice Rehnquist and three others) refused to apply the National Labor Relations Act (NLRA) to the Archdiocese of Chicago in its dealings with a teachers’ union.167 Seeking to avoid First Amendment Religion Clause problems, the Court interpreted the NLRA as failing to manifest the “affirmative intention of the Congress clearly expressed” to include parochial schools.168 In dissent, Justice Brennan argued that the constitutional avoidance canon did not apply because the NLRA could reasonably be construed only as extending to such schools, given its text (covering “any” employer with eight exceptions that did not include religious employers), legislative history (Congress rejected an amendment to exempt church employers), and

163 443 U.S. 193, 197–201 (1979). 164 Id. at 201–08. To support this creative construction, the Court cited Holy Trinity. Id. at 201. 165 Id. at 216 (Burger, C.J., dissenting). 166 See id. at 216–17; see also id. at 219–55 (Rehnquist, J., dissenting). 167 440 U.S. 490, 499–07 (1979) (citing relevant statutory provisions). 168 Id. at 506. 156 GEORGIA LAW REVIEW [Vol. 51:121 precedent (which construed the NLRA’s applicability to its maximum possible scope).169 Weber and Catholic Bishop embody raw pragmatism. Such decisions prompted a new breed of judges and scholars to insist that statutory interpretive discretion must be cabined by reviving the traditional textualist methodology.170 6. The Judicial and Scholarly Debate: Textualism vs. Pragmatism. a. The Textualist Backlash. After Justice Scalia’s appointment in 1986, textualism became ascendant171 in interpreting statutes, which had mushroomed in areas like public health and safety, civil rights, the environment, and interstate crimes.172 To draft such complex laws and their accompanying legislative histories, Senators and Representatives relied upon their huge staffs, which in turn were assisted by special interest groups and nonpartisan professional researchers and drafters.173 These developments exacerbated the difficulties inherent in discerning the intent of a multi-member legislature as to particular statutory language.174 For example, the wording might

169 Id. at 508–18 (Brennan, J., dissenting); see also Robert J. Pushaw, Jr., Labor Relations Board Regulation of Parochial Schools: A Practical Free Exercise Accommodation, 97 YALE L.J. 135, 138–39, 153–54 (1988) (criticizing the Court for creating a “blanket exception” to the NLRA for Catholic schools). A textualist would have found Brennan’s first point dispositive. The NLRA applies to “any” employer, except for those in eight listed categories (such as government and agriculture). See Catholic Bishop, 440 U.S. at 511 (Brennan, J., dissenting). As religious employers did not fall within the exceptions, they must have been encompassed by the word “any,” which means every single one. 170 See Manning, Second-Generation, supra note 2, at 1292. In particular, Weber featured a transparently result-oriented interpretation on the hot-button issue of affirmative action, which fueled the textualist counterattack. See Gluck, supra note 51, at 86–87. 171 See Thomas W. Merrill, Textualism and the Future of the Chevron Doctrine, 72 WASH. U. L.Q. 351, 351–57, 363–64 (1994). A pivotal case was Board of Governors v. Dimension Financial Corp., 474 U.S. 361, 374 (1986) (declaring that a statute’s general purpose cannot be invoked to trump its clear wording, which reflects the specific means—usually in the language of compromise—that Congress chose to achieve that purpose). 172 See Nelson & Pushaw, supra note 144, at 83–88, 122–63 (examining such laws). 173 See supra notes 145–46, 152–54 and accompanying text; infra notes 208–19, 236 and accompanying text. Moreover, Congress routinely enacted general laws and delegated detailed rulemaking to executive agencies, and carefully monitoring them became difficult. See supra notes 145–49, 153–54 and accompanying text. For a summary of these problems, see SCALIA, supra note 1, at 17–18, 21–23, 29–37; SCALIA & GARNER, supra note 1, at 369–96. 174 See, e.g., SCALIA & GARNER, supra note 1, at 391–96; Easterbrook, supra note 2, at 538–44, 547–48, 550–52; Manning, Second-Generation, supra note 2, at 1288, 1295–98, 1303; Manning, What Divides, supra note 129, at 71–74, 75, 96, 98, 102, 108, 110. This

2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 157 reflect a bargain to gain concessions in other parts of the statute (or unrelated legislation), and such logrolling is typically off the record.175 Or perhaps a few Representatives or Senators (or just one) or their staffers inserted a provision—or slipped a slanted “explanation” of it into the legislative history—as a sub rosa favor to a lobbyist.176 Courts do not have the time, competence, or incentive to reconstruct such dealings.177 Finally, a search for intent is pointless when unclear statutory verbiage resulted inadvertently from carelessness or time pressure.178 Similar troubles arise when judges apply “purposivism”— construing discrete provisions in a statute in a way that most reasonably furthers its overall purpose.179 Legislation requires

problem was first identified in Max Radin, Statutory Interpretation, 43 HARV. L. REV. 863, 870–71 (1930). 175 See Manning, Second-Generation, supra note 2, at 1288, 1290, 1295–1304, 1310–16. 176 See Manning, What Divides, supra note 129, at 74–75, 77, 96, 99–111. “[S]trategic manipulation of legislative history” is especially rampant. See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568–69 (2005) (Kennedy, J.); see also Blanchard v. Bergeron, 489 U.S. 87, 98–99 (1988); Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 73 (2004) (Scalia, J., dissenting); SCALIA, supra note 1, at 3, 34; Manning, Second- Generation, supra note 2, at 1294–98, 1304–05, 1307. 177 See Manning, What Divides, supra note 129, at 73–74, 102–03, 106–10; see also Posner, Economics, supra note 160, at 272–73 (observing that personal, professional, and resource limitations confine courts to consideration of public legislative materials, with any attempts to determine legislators’ private incentives and motives left to public choice scholars); INS v. Cardoza-Fonseca, 480 U.S. 421, 452–53 (1987) (Scalia, J., concurring) (“Judges interpret laws rather than reconstruct legislators’ intentions. Where the language of those laws is clear, we are not free to replace it with unenacted legislative intent.”). 178 See Jarrod Shobe, Intertemporal Statutory Interpretation and the Evolution of Legislative Drafting, 114 COLUM. L. REV. 807, 815, 866–72, 875–76 (2014) (distinguishing such unintentional ambiguity from deliberate equivocation that reflects a strategic bargain when Congress is unable or unwilling to resolve an issue, and arguing that use of legislative history is far less justified in the latter situation because partisan staff have such a strong incentive to manipulate it); Brendan Selby, Must Courts Respect Hidden Legislative Bargains?, 43 HASTINGS CONST. L.Q. 587, 610–11, 622, 638–46 (2016) (contending that the plain yet awkwardly worded text of a statutory provision often does not reflect a conscious compromise, but rather sloppy drafting which escapes legislators’ attention because they lack the time and resources to analyze entire statutes). It is often hard to determine whether murky language stemmed from neglect or intentional obfuscation. In any event, courts should hesitate to charge Congress with either failing. Textualist judges avoid such accusations because they resolve ambiguities in a statutory provision by ascertaining its most likely semantic meaning in context, not by attempting to determine why Congress used the language it did. See supra notes 1–2, 43– 44, 49 and accompanying text; infra notes 183–91 and accompanying text. 179 See Manning, What Divides, supra note 129, at 76–78, 85–96, 102–03, 110. For the intellectual origins of purposivism, see supra notes 158–59 and accompanying text. 158 GEORGIA LAW REVIEW [Vol. 51:121 compromise among groups with competing aims, so Congress does not pursue a single purpose at all costs.180 Yet courts sometimes try to avoid a perceived bad result by describing Congress’s “purpose” at a high level of generality (e.g., to achieve justice) and thereby change the clear semantic meaning of specific statutory provisions, which embody the bargains actually agreed upon.181 Almost inevitably, then, judges attribute a purpose to Congress that reflects their own personal view of what a reasonable legislator would have desired.182 Textualists argued that these problems made it unwise and inefficient to try to fathom the lawmaking process. Rather, generalist judges, who almost always lack congressional experience, should stick to their area of expertise—parsing legal texts—by expounding the enacted statute.183 Textualists urged courts to apply widely shared linguistic conventions (e.g., dictionary definitions and standard grammar), including a presumption that Congress uses words to communicate their ordinary semantic meaning to a reasonable reader of a particular statute, with its distinctive subject matter.184 Although a word or

180 See Manning, Equity, supra note 4, at 7, 18–19. 181 See SCALIA & GARNER, supra note 1, at 18–23, 34–39, 56–58, 343–54, 391–96; Easterbrook, supra note 2, at 539–49, 552; Frank H. Easterbrook, What Does Legislative History Tell Us?, 66 CHI.-KENT L. REV. 441, 449 (1990) [hereinafter Easterbrook, What Does]; Manning, What Divides, supra note 129, at 70, 74, 77, 96–111; Manning, Second- Generation, supra note 2, at 1292, 1311–12, 1314–16. 182 See Easterbrook, supra note 2, at 551; Cass Sunstein, Justice Breyer’s Democratic Pragmatism, 115 YALE L.J. 1719, 1719–21, 1726, 1731–39 (2006) (reviewing STEPHEN BREYER, ACTIVE LIBERTY (2005)); see also Zuni Pub. Sch. Dist. v. Dep’t of Educ., 550 U.S. 81, 117 (2007) (Scalia, J., dissenting) (“[W]hat judges believe Congress ‘meant’ (apart from the text) has a disturbing but entirely unsurprising tendency to be whatever judges think Congress must have meant, i.e., should have meant.” (second emphasis added)). 183 [The Justices] became tired and cynical after a few years of trying to process and marshal the disparate pieces of an increasingly diverse and incoherent legislative record . . . . [S]tatutory text was circumscribed enough that generalist judges could process it relatively easily. . . . This was even more true of canons and dictionaries, which were as legible to generalist judges as anyone else. Thus, textualism reasserted the omnicompetence of the judiciary . . . despite the enormously complex and subject-specific processes of policy formulation that actually characterize the administrative state. Parrillo, supra note 129, at 391–92. 184 See SCALIA, supra note 1, at 16–17, 20, 23–25; SCALIA & GARNER, supra note 1, at xxvii–xxx, 5–6, 16, 20, 24–41, 56–58, 69–84, 140–43, 355–58; Manning, What Divides, supra note 129, at 75–83, 103–05, 110–18; Manning, Means, supra note 50, at 68–74. Thus,

2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 159 phrase might have several possible significations when viewed in isolation, a single meaning usually emerges after evaluating the verbal context of the entire statute—including the language surrounding the disputed term, other provisions, and the precise purpose stated in the text.185 To take a simple example, an Act of Congress regulating the jurisdiction of a “court” refers to a collective adjudicative body—not an enclosed area, an athletic playing surface, a royal assembly, or a noble’s residence.186 This attention to semantic context explains why textualists recognize, as did Blackstone, that a statute’s seemingly plain meaning would not control in two situations.187 First, established legal, technical, or commercial terms of art should be read in their specialized rather than popular sense (a point Congress often makes explicit in definitions).188 Second, judges will not enforce the literal meaning of language if doing so would produce a patently absurd result, such as when an error in transcribing a word is obvious on the face of a statute.189 extrinsic materials (e.g., dictionaries, treatises, and judicial opinions) can be used to determine the semantic meaning of texts. Manning, Textualism, supra note 92, at 676, 695–706. Textualists reject the notion that law, because it consists of words, is always indefinite and hence amenable to more than one reasonable meaning. See SCALIA & GARNER, supra note 1, at 6–7, 24–26; Easterbrook, supra note 2, at 533–34 n.2. Interestingly, even some liberals agree. See, e.g., Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 442 (1989) (“When taken in their setting—in their context and culture— statutes are usually susceptible to only one plausible meaning.”). 185 See supra notes 1–2 and accompanying text. See also SCALIA & GARNER, supra note 1, at 322–26 (recognizing that a court or agency’s authoritative construction of terminology in a statute can help illuminate the meaning of language in another statute in the same field of law). 186 See Court, 2 OXFORD ENGLISH DICTIONARY 1090–91 (2d ed. 1978) (providing many definitions of “court”). 187 See supra notes 76–82 and accompanying text (discussing the Blackstonean exceptions to a strict “plain meaning” rule). 188 See SCALIA & GARNER, supra note 1, at 69, 73–77, 441; Manning, What Divides, supra note 129, at 81–83, 89; Manning, Equity, supra note 4, at 112–15; Frank H. Easterbrook, Legislative History Values, 66 CHI.-KENT L. REV. 441, 443 (1990) [hereinafter Easterbrook, Legislative History]. 189 See, e.g., SCALIA & GARNER, supra note 1, at 234–39. Admittedly, the absurdity exception—which assumes that courts can determine Congress’s intent and should not apply its statutes in a way that was unintended—is in tension with textualism, which focuses on the objective meaning of statutory language. See John F. Manning, The Absurdity Doctrine, 116 HARV. L. REV. 2387, 2393–2431, 2485–86 (2003). Professor Manning argues that the absurdity principle also cannot be squared with the Constitution’s structure, which separates legislative from judicial power and thus does not allow judges to

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In short, the “context” textualism prioritizes is semantic (i.e., evidence about how a reasonable person familiar with relevant linguistic conventions likely used the words in a specific statute), not policy oriented (how a provision might be read to rationally solve a problem in light of Congress’s overarching goals).190 Accordingly, textualists insist that courts enforce a clearly worded statutory provision as written to honor Congress’s presumed bargain expressed therein, even if that semantic meaning might not perfectly align with the statute’s overall purpose.191 Textualism does not merely yield practical benefits such as efficiency and consistency, but also faithfully implements the Constitution, which creates a democratic government with separated powers to promote the rule of law.192 Article I empowers Congress to act through a mandatory process of bicameralism and presentment, thereby ensuring that electorally accountable officials make reasoned policy decisions and that political minorities can negotiate compromises.193 The statute voted upon is the law, even though it will often contain some awkward terminology.194 Indeed, under the Necessary and Proper Clause, Congress can use statutory language that expresses its preferred level of precision and coherence: firm rules; vague standards

deviate from a statute’s text to make it more consistent with asserted shared social values. Id. at 2392–95, 2431–54, 2486. Therefore, he urges textualists to address possible “absurdity” problems through contextual interpretation of text and judicial review. Id. at 2454–86. 190 See Manning, What Divides, supra note 129, at 76–77, 91–111. 191 See id. at 73–77, 80, 92, 95–96, 99–111; see also Manning, Second-Generation, supra note 2, at 1290, 1304, 1309–17 (maintaining that this argument, which he developed based on earlier writings by Justice Scalia and Judge Easterbrook, is the strongest justification for textualism). 192 See supra notes 45–49, 86–109, 114–24 and accompanying text (describing the original constitutional framework). For arguments linking textualism to separation of powers, constitutional democracy, and legislative supremacy, see SCALIA, supra note 1, at 9–18, 23– 25, 35–36; SCALIA & GARNER, supra note 1, at xxvii–xxx, 82–83, 88–89, 243–46, 375–89, 398; Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL’Y 61, 68 (1994) [hereinafter Easterbrook, Text]; Manning, Second- Generation, supra note 2, at 1292, 1297, 1304–07, 1314, 1316–17. 193 See, e.g., Thompson v. Thompson, 484 U.S. 174, 191–92 (Scalia, J., concurring); In re Sinclair, 870 F.2d 1340, 1344 (7th Cir. 1989) (Easterbrook, J.); Manning, Second- Generation, supra note 2, at 1292. See generally supra notes 45–46, 90–94 and accompanying text (setting forth the Article I lawmaking framework and its rationale). 194 See, e.g., Manning, Second-Generation, supra note 2, at 1290, 1310–17; Manning, What Divides, supra note 129, at 74–77. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 161

(perhaps accompanied by delegation to an agency); inelegant phrasing that resulted from a compromise; or language that is overbroad or underinclusive.195 Article I excludes federal judges from the legislative process, and Article III immunizes them from political pressure so they can impartially exercise the “judicial power” of interpreting and applying the law.196 When the governing law is a statute, courts must fairly construe it based on the accountability-reinforcing premise that Congress writes in a way that is intelligible to ordinary citizens.197

195 See Manning, Means, supra note 50, at 3–10, 15–30, 49–78, 83–84. Brendan Selby disagrees that the Constitution requires textualism to preserve all legislative compromises to the maximum extent possible. See Selby, supra note 178, at 589–90, 595–614, 622–47. He contends that several constitutional provisions—those establishing a republican government, promoting bicameral deliberation, and authorizing Congress to engage in free public debate and to publish a journal of its proceedings—privilege transparency, so that courts should respect only legislative bargains reached openly, not secret deals (which are permitted but not favored). See id. at 603–12, 625–47. He further points out that poorly worded statutory provisions often do not reflect a deliberate compromise, but rather mere sloppy drafting. See id. at 610–11, 622, 638–46. Although Selby’s arguments are insightful, they do not refute the basic point: Article I treats the enacted statute as law, which presumably conveys its semantic meaning. The exercise of Article III “judicial power” requires enforcing that law, not rewriting statutes on the theory that they were badly written. 196 See supra notes 45–48 and accompanying text. Professor Gluck asserts that the Court’s incoherent approach to statutory interpretation reflects “a spectacular lack of theory about the role that courts should play in the legislative process itself — which is, after all, the fundamental constitutional question of the Court-Congress relationship in statutory cases.” Gluck, supra note 51, at 63. Actually, the Constitution clearly answers that question: Courts have no role in the legislative process. 197 See supra notes 45–49, 96–107 and accompanying text. Professor Manning maintains that textualism promotes the Constitution’s structure by enforcing the law that emerged from the Article I process of bicameralism and presentment—and thus preventing Congress from enacting unclear statutes and delegating to certain of its members (e.g., committees that write reports or sponsors who make statements) power to resolve those ambiguities, which conflates legislative and executive powers. See Manning, Textualism, supra note 92, at 675–76, 698–99, 706–39. Professor Rosenkranz challenges the basic assumption that the Constitution authorizes courts alone to design and implement rules of statutory construction. See Rosenkranz, supra note 51, at 2086–2157. Although he acknowledges that Article III “judicial power” includes formulating and applying such rules as needed to decide cases, he argues that the Necessary and Proper Clause grants Congress substantial power to change these rules, which fall into three main categories. Id. at 2086–2140. First, common law rules of interpretation (like expressio unius) can be developed and modified by courts, but overridden by an Act of Congress. Id. at 2093, 2106–09, 2156. Second, constitutional starting-point rules (such as the “rule of lenity” that ambiguous criminal statutes must be construed in favor of defendants) must be applied—and cannot be altered—by judges, but

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The foregoing approach resolves most interpretive disputes. Textualists recognized, however, that sometimes statutory language is truly ambiguous or vague and the surrounding verbal context does not illuminate its meaning. If so, legislative history may be consulted for the limited purpose of trying to determine Congress’s probable usage.198 If that attempt fails, the statute should be treated as inoperative, with any clarifications entrusted to Congress.199 Finally, in certain cases the issue is not how to interpret an unclear provision in a statute. Rather, there is no provision that applies. A statute does not necessarily supply (or authorize a court to devise) an “answer” to every question posed by a litigant.200 Instead, Congress may not have thought about a particular issue, or its members may have decided to leave the

may usually be reversed by federal statute. Id. at 2093–97, 2108–09, 2156. Third, constitutional default rules (such as the presumption that Congress did not intend to upset the traditional federal-state balance absent a clear contrary statement) cannot be changed by courts or by Congress wholesale, but Congress can avoid their effect in a particular statute. Id. at 2097–2101, 2108, 2120–24, 2156. Rosenkranz characterizes textualism as a “starting point” rule that judges must apply, unless and until a statute expressly provides otherwise. Id. at 2087, 2101–02, 2138. Therefore, Congress could constitutionally either require or forbid courts to defer to legislative history that preceded a law’s enactment—contrary to Manning’s assertion. Id. at 2109, 2124–25, 2136–39, 2150–51. By contrast, Congress could not mandate judicial deference to post-enactment legislative history (e.g., delegating to a congressional committee, an executive official, or a private party power to determine how a statute must be interpreted). Id. at 2126–39. Finally, Rosenkranz contends that some congressional interpretive directives would be desirable, for four reasons. Id. at 2140–57. First, Congress could establish a systematic and coherent law, whereas the Court develops its rules on a case-by-case basis. Id. at 2143. Second, federal rules of construction would always be applied prospectively, unlike those made by the Court. Id. at 2143–44. Third, an Act of Congress would bind all nine Justices, whereas their specific interpretive rules lack such force. Id. at 2144–45. Fourth, Congress is in the best institutional position to assess the efficiency of such rules. Id. at 2145, 2157. Accordingly, Rosenkranz recommends that Congress create a regime similar to the Federal Rules of Civil Procedure, whereby Congress delegates to the Court the task of drafting Federal Rules of Statutory Interpretation but retains final control. Id. at 2151–53, 2157. 198 See, e.g., Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005); Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 598–99 (2004); SCALIA, supra note 1, at 23–29; Manning, What Divides, supra note 129, at 84–85. 199 See SCALIA & GARNER, supra note 1, at 134–39. 200 See Easterbrook, supra note 2, at 533–34; see also id. at 544 (“[U]nless the statute plainly hands courts the power to create and revise a form of common law, the domain of the statute should be restricted to cases anticipated by its framers and expressly resolved in the legislative process.”). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 163 matter unresolved.201 Such inaction is an overlooked, but significant, element of Article I “legislative power.”202 Therefore, judges should not assume that there is a “gap” they must fill by speculating about what Congress would have wanted had it addressed the specific question.203 Scalian textualism has profoundly influenced statutory construction. Nonetheless, it has been attacked by pragmatists as unrealistically simplistic. b. Pragmatism. This label encompasses various flexible approaches to statutory interpretation that are distinct but share certain core similarities. Pragmatists presume that words rarely have a clear meaning and are therefore susceptible to different interpretations.204 This inherent imprecision is magnified in statutes, which usually contain provisions that are vague or ambiguous or that, taken together, are inconsistent or conflicting.205 Such verbal shortcomings are inevitable because legislation is a complicated process of compromise among many members of Congress who have different purposes, constituencies, levels of verbal skill, and abilities to foresee problems when their law is applied later.206 These difficulties have intensified since the New Deal as the number, length, and complexity of statutes have increased.207 Abbe Gluck and Lisa Bressman have argued that the actual process of legislation diverges significantly from the classical

201 See id. at 540. 202 See MAXWELL L. STEARNS, CONSTITUTIONAL PROCESS: A SOCIAL CHOICE ANALYSIS OF SUPREME COURT DECISION MAKING 158–60, 164–66, 198–211 (2000) (arguing that courts should preserve Congress’s power to create, or decline to create, law as it sees fit—including the discretion to leave legal issues undecided unless and until a legislative consensus has formed). 203 See SCALIA & GARNER, supra note 1, at 93–100, 349–51; see also Easterbrook, supra note 2, at 539–49 (contending that such imaginative judicial gap-filling overturns the legislative process, which involves complicated tradeoffs based on cost-benefit calculations that include punting certain matters). Put simply, judges should never add to the text of a statute, although they have frequently done so to reach their preferred results. See SCALIA, supra note 1, at 10, 16–29; SCALIA & GARNER, supra note 1, at 9–15, 18–28, 96–98, 343–54, 377–91. 204 See, e.g., STEPHEN BREYER, AMERICA’S SUPREME COURT: MAKING DEMOCRACY WORK 90–91 (2010). 205 See id. at 91, 96, 99–100; Posner, supra note 5, at 803, 811–12, 819–20. 206 See BREYER, supra note 204, at 96–97; Posner, supra note 5, at 803, 806, 809, 811–13, 817–22. 207 See supra notes 43, 144–49, 152, 173–74 and accompanying text. 164 GEORGIA LAW REVIEW [Vol. 51:121 model.208 They make three empirical findings that, in their view, especially undermine textualism. First, textualists assume that most statutes emerge from the following “textbook” procedure: (1) a bill passes through the House and Senate with committee consideration in each; (2) a joint conference committee cleans up the bill; and (3) members of Congress vote after careful examination of the text and thoughtful debate.209 In reality, however, unorthodox lawmaking is the norm.210 For example, lengthy “omnibus” legislation bundles together bills by different committees with multiple drafters, and many statutes (particularly those passed in response to emergencies) feature little deliberation.211 Second, Representatives and Senators lack the time to read each statute in full—much less personally draft and constantly perfect it.212 Rather, they articulate broad policies, direct their staffs (with help from lobbyists) to embody those policies in “bullet points,” and leave the final writing of statutes to nonpartisan

208 These scholars empirically tested the assumptions underlying statutory interpretation theories by surveying congressional staff who draft statutes to determine how the legislative process works—including their knowledge and use of canons, views of legislative history, understanding of agency implementation, and perception of the relationship between Congress and the courts. See Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 STAN. L. REV. 901 (2013) (focusing on the staff drafters’ awareness and use of judicial rules of statutory construction); Lisa Schultz Bressman & Abbe R. Gluck, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 STAN. L. REV. 725 (2014) (examining the personnel, structural, and process-based factors that drive the details of lawmaking). Their study concludes that no existing approach reflects Congress’s actual practices or expectations, so none can be justified as enabling courts to act as Congress’s “faithful agents” and thereby reinforce legislative supremacy in our democracy. See Gluck & Bressman, supra, at 905, 907, 910, 949–64, 1017–20; Bressman & Gluck, supra, at 728–30, 777, 783–84, 787. These authors are especially critical of textualism and favor a multi- factor approach that accounts for their findings, although they recognize that doing so might be excessively costly. See Bressman & Gluck, supra, at 730, 777–801. 209 See Gluck, supra note 51, at 62–67, 78, 80–90, 97–99, 102. Even when these textbook procedures are followed, consistency is difficult because each House and Senate committee acts independently according to different practices and has a unique mix of staffers. See Bressman & Gluck, supra note 208, at 728–29, 735, 738–39, 747–55, 762, 782. 210 See Bressman & Gluck, supra note 208, at 760–63; Gluck, supra note 51, at 63, 67, 76, 96–109. 211 See Bressman & Gluck, supra note 208, at 728, 759–63, 782. 212 See Gluck, supra note 51, at 62–67, 80–90, 97–111. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 165

Legislative Counsel.213 The staff and Counsel do not follow textualist linguistic conventions such as the plain meaning rule and consistent usage of terms within and across statutes.214 Moreover, focusing solely on text privileges the views of the Counsel who actually wrote it—not, as textualists assert, the Congress that enacted it.215 Third, Senators and Representatives typically do not base their votes on the statute itself, but rather on legislative history (especially conference and committee reports), which they and their staff consider extremely important.216 Thus, textualists do not necessarily keep Congress accountable or enforce its bargains

213 See Gluck & Bressman, supra note 208, at 906, 908, 940, 966–69, 1015, 1020, 1024; Bressman & Gluck, supra note 208, at 728–29, 735–47, 758. 214 Drafters rejected four textualist assumptions. First, they did not believe that words should be given their ordinary meaning, and they almost never consulted dictionaries. See Gluck & Bressman, supra note 208, at 907, 933–34, 954–55, 963, 1016. Second, they did not believe statutes should be construed to avoid redundancy, because satisfying all stakeholders often required use of repetitive language. Id. at 907, 934–36, 954, 1016. Third, they deemed impractical the presumption that specific terms have a consistent meaning throughout a statute and across different statutes, because each statute typically had multiple drafters who did not necessarily coordinate their efforts. Id. at 907–08, 915, 930, 933–40, 949, 954–56, 1011, 1016, 1019, 1023. Fourth, for similar reasons, they did not expect the act to form a coherent whole. Id. at 908–09, 930–34, 954–56, 1016. These findings suggest that the Court should abandon these four principles. See Bressman & Gluck, supra note 208, at 783–84; see also Gluck, supra note 51, at 62, 64–66, 80–85, 102–03 (contending that textualism features an inherent tension by positing that statutes are so complex that they are often incomprehensible, but applying interpretive rules that assume Congress uses language with perfect clarity, precision, and coherence). Contrary to the assertions of Professors Gluck and Bressman, textualists do not claim that courts should presume ordinary linguistic usage (e.g., dictionary definitions, standard grammar, and consistent usage of terms) because Congress’s members are actually paying close attention to dictionaries, grammar manuals, and minute wording details. Rather, this presumption provides Congress with a clear set of default rules that enable (but do not require) it to draw lines in a cheap and easy way. See John F. Manning, Inside Congress’s Mind, 115 COLUM. L. REV. 1911, 1937–43 (2015) [hereinafter Manning, Inside]. Thus, members of Congress need not know the exact content of a statute they vote on to give it legal significance. Id. at 1937. 215 See Bressman & Gluck, supra note 208, at 736–43, 780. 216 See Gluck & Bressman, supra note 208, at 968–69. Hence, Congress will continue to create and use legislative history, regardless of what the Court says. See id. at 907–08, 965–70, 974, 988, 1016; see also id. at 970–74 (noting that Congress utilizes legislative history for many purposes unrelated to later litigation, such as guiding agency implementation of statutes, reassuring wavering members, providing long-term institutional memory, communicating with the public, satisfying special interest groups, and reducing the statute’s length). Cf. Posner, Economics, supra note 160, at 274–75 (observing that members of Congress lack the time to study legislation carefully and instead rely on assurances by its sponsors). 166 GEORGIA LAW REVIEW [Vol. 51:121 by limiting courts to the act’s text217 and excluding all legislative history.218 Although the Gluck/Bressman study is empirical rather than normative, they conclude that textualism cannot be justified as faithfully implementing Congress’s intent.219 Their findings tend to support pragmatists, who have long maintained that courts should consult all available evidence—text, the legislative record, the statute’s historical background, indicia of intents and purposes, tradition, precedent, the surrounding facts and circumstances, and social values—to reach a result that seems most sensible, fair, and consistent with the policy goals of the enacting Congress.220 Consequently, courts can either restrict or

217 See Gluck & Bressman, supra note 208, at 968–69 (criticizing the “accountability” argument); Bressman & Gluck, supra note 208, at 729, 738, 740, 742–43, 780, 784 (maintaining that the statute’s text is not always the best indicator of the legislative bargain). 218 See Gluck & Bressman, supra note 208, at 974–90. They claim that legislative history is not necessarily unreliable evidence of Congress’s intent—the product of sore losers who could not get their views enacted. Although certain items (such as floor statements) are admittedly not dependable, other documents (like conference reports, committee reports, and colloquies between committee members and leaders of the opposite party) are fairly reliable. Id. at 908, 976–82, 986–88. Instead of banning all legislative history, then, courts should evaluate each type based on its relative trustworthiness. See id. at 988–89. But see Shobe, supra note 178, at 860–65 (arguing that the nonpartisan Legislative Counsel’s dominant role in writing modern statutes supports textualism, whereas legislative history is unreliable because it is drafted by self-interested staff and lobbyists). 219 Bressman & Gluck, supra note 208, at 728–30, 783–84. They also reject two other justifications for textualism. First, it does not necessarily advance constitutional values like the rule of law through clear principles that ensure predictability, coherence, and legal system coordination—especially because textualist rules are applied so loosely and inconsistently. See Gluck & Bressman, supra note 208, at 905, 908–09, 950–51, 961–63, 1017–19; Bressman & Gluck, supra note 208, at 728, 730, 777–90. Second, textualism does not induce Congress to write more precisely. See Gluck & Bressman, supra note 208, at 905, 937–38, 952, 974, 1017. These conclusions, however, do not flow from the infirmities of textualism per se, but rather from the Court’s failure to apply that approach rigorously and instead to bail out Congress by resorting to pragmatism, either explicitly or implicitly. If the Court were to apply textualism faithfully and to frequently reach results displeasing to Congress, then Congress would have to change its practices to ensure that its statutes were drafted with greater precision, which in turn would comport with the Constitution’s structure and its underlying values like the rule of law. See supra notes 45–50, 88–133, 183–203 and accompanying text. 220 See BREYER, supra note 204, at 88–102; Posner, supra note 5, at 807–08, 816–23; see also William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as Practical Reasoning, 42 STAN. L. REV. 321, 321–24, 345–62 (1990) (arguing that courts realistically must apply a contextual approach that weighs a variety of considerations based on a case’s facts and circumstances). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 167 stretch statutory terms to avoid outcomes that seem unreasonable.221 Pragmatists contend that textualists actually undermine separation of powers by failing to recognize the discretionary choices they are making, often in a way that frustrates Congress’s will.222 Justice Breyer has adopted the foregoing arguments explicitly in his scholarship,223 but only implicitly in his judicial opinions.224 By contrast, Richard Posner has openly espoused pragmatism in all his written work.225 Other legal scholars have taken

221 See Manning, Pragmatism, supra note 160, at 1162 (describing, but not endorsing, this aspect of pragmatism). 222 See Posner, supra note 5, at 805–07, 816–17; Gluck & Bressman, supra note 208, at 909; Gluck, supra note 51, at 64, 66, 80–85, 102–03; see also RICHARD A. POSNER, HOW JUDGES THINK 13–15, 48–49, 103–05, 191–203, 230–31, 239–40, 252–56, 263, 287–88, 337– 38, 341–42, 346, 371–73 (2008) (claiming that conservative judges pragmatically employ “legalistic” interpretive approaches, such as textualism, to conceal their discretionary lawmaking that furthers their ideological preferences); Peter L. Strauss, The Courts and the Congress: Should Judges Disdain Political History?, 98 COLUM. L. REV. 242 (1998) (contending that separation of powers, the common law tradition, and judicial practice require courts, in their inevitable exercise of interpretive discretion, to consult legislative history to understand a statute’s political context (especially its remedial purpose), which will help them ascertain how Congress likely would have wanted them to resolve the issue presented). Judge Posner recognizes that the Constitution limits courts to determining and effectuating the law made by Congress, not exercising untrammeled discretion on a case-by- case basis to rewrite statutes. See Manning, Pragmatism, supra note 160, at 1162–63, 1169–74 (citing Posner). Rather, he contends that judges, to perform their Article III interpretive function properly, must do more than apply the semantic meaning of a statute’s words. See supra notes 5–6, 204–06, 220 and accompanying text. 223 He maintains that “pragmatic” and “workable” interpretation requires consideration not only of a statute’s text, history, legal tradition, and precedent, but also (and especially) Congress’s purposes and the consequences of applying a statute in a particular way in light of those purposes. See BREYER, supra note 204, at 80–84, 88–98; see also id. at 94–96 (asserting that this approach promotes democracy because voters are aware of Congress’s broad objectives, not detailed statutory language); id. at 98–101 (recognizing that a judge’s attempt to identify a statute’s purpose can be difficult and subject to misuse). 224 See John F. Manning, The New Purposivism, 2011 SUP. CT. REV. 113, 146 n.168 [hereinafter Manning, New]; see also infra notes 243–44, 246, 254–61, 265–70, 374, 396– 454, 464–72, 486, 508–607 and accompanying text (describing how Justice Breyer either writes or joins opinions that invoke textualist rhetoric to disguise pragmatic interpretation). 225 Judge Posner uses the word “pragmatism” in its ordinary sense of being practical, concrete, and “business-like.” See RICHARD A. POSNER, LAW, PRAGMATISM, AND DEMOCRACY 49–50 (2003). For example, in United States v. Marshall, 908 F.2d 1312 (7th Cir. 1990) (en banc), aff’d sub nom. Chapman v. United States, 500 U.S. 543 (1991), the Seventh Circuit interpreted a statute that based criminal sentences on the weight of “a mixture or substance containing a detectable amount [of LSD]” as including the weight of the medium (paper) carrying the LSD. Id. at 1315–18. Judge Posner dissented on the pragmatic ground that punishment reasonably should be keyed to the drug dosage rather than the weight of

168 GEORGIA LAW REVIEW [Vol. 51:121 pragmatism one step further by arguing that courts need not focus on the probable understanding of the enacting legislature, but should correct imperfections in statutes.226 Even more boldly, William Eskridge and Guido Calabresi have urged courts to act as partners with legislatures in making law by adapting statutes to changing circumstances.227 Indeed, Professor Eskridge suggests that independent federal courts might be better at formulating reasonable policy in the national interest than Congress, which often passes laws to benefit private parties and thereby produces provisions that are irrational from an overall economic and social perspective.228 Unfortunately, dynamic statutory interpretation posits a Congress-Court partnership that neither institution wants229 and the carrier medium, because otherwise possession of small amounts of LSD on heavy carriers would be penalized more severely than possession of large quantities on light carriers. See id. at 1333–35 (Posner, J., dissenting). Posner has also asserted that judges should sometimes engage in “imaginative reconstruction”: thinking about how the enacting Congress would likely have wanted its law to be applied to the precise issue presented, which Congress failed to anticipate and therefore did not address. See Posner, supra note 5, at 817–22. But see Manning, Pragmatism, supra note 160, at 1161–74 (arguing that flexible statutory interpretation, if it is ever warranted, should be based not on the fiction that judges are merely approximating the probable intent of the enacting Congress as to a question that unexpectedly arises in litigation, but rather on the idea that “judicial power” includes discretion to make an independent judgment that weighs all legislative materials and that carefully evaluates facts and consequences). 226 See Gluck, supra note 51, at 63–65. 227 See WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 50 (1994); William N. Eskridge, Jr., Textualism: The Unknown Ideal?, 96 MICH. L. REV. 1509, 1522–23 (1998) (postulating that Congress implicitly favors such broad judicial interpretive discretion because it tends to enact general legislation and delegate the specific details to judges and agencies, owing to time constraints, lack of expertise, and political expediency); GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES (1982) (contending that courts should act in common law fashion to update obsolete statutes that no longer fit the total legal landscape and thus are unlikely to enjoy current majority support); Peter L. Strauss, The Common Law and Statutes, 70 U. COLO. L. REV. 225 (1999) (maintaining that the Constitution contemplates that judges will play their traditional active, common law role in statutory interpretation). 228 See supra note 160 and accompanying text. 229 Statute drafters do not view courts as welcome “partners” in legislation or delegate interpretive powers to them, but rather think of Congress as in a dialogue with agencies. See Bressman & Gluck, supra note 208, at 728–30, 765–77, 785–86. Conversely, the Court has no desire to share the function of statutory interpretation, which it sees as part of its exclusive “judicial power.” See id. at 729, 778–79, 796–97; see also id. at 785–87 (arguing that “purposivists” also mistakenly conceptualize the Court and Congress as partners in effectuating Congress’s broad goals). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 169 disregards the Constitution, which grants “judicial power” to independent judges so that they can faithfully enforce the laws duly enacted by Congress, not amend statutes to keep them current.230 But even the seemingly more moderate Breyer/Posner approach presents a similar risk, as judges instinctively assume that a result they believe is reasonable, just, and wise must be what the enacting Congress would have wanted.231 Pragmatists also presume that all language is murky, which can cause them to ignore even unambiguous statutory terms and instead fabricate a different “interpretation” based on snippets of legislative history, invocation of broad congressional intent or purposes, appeals to “history and tradition,” and assertions about beneficial practical and policy consequences.232 Not surprisingly, pragmatism can easily devolve into judicial rewriting of statutes based on personal, political, ideological, social, moral, and economic preferences.233 Indeed, such bias is almost inevitable because the Court lacks the expertise and time to conduct the thorough analysis contemplated by pragmatists. Since Hugo Black’s retirement in 1971, no Justice has served in Congress,234 making it unlikely that the Court can fathom the complexities of the legislative process. Furthermore, even if the Justices did possess the requisite expertise, they would not have the time to (1) read a statute, (2) comb through its legislative history (which can run thousands of pages), (3) become familiar with its contemporaneous historical context, (4) review all of the pertinent case law, and (5) figure out the best way to apply all of this evidence to fulfill Congress’s intent, purposes, and policies. Ironically, then, pragmatism is not practical. By contrast, textualism is realistic and efficient because the Justices are experts at parsing legal texts and typically can manage to read the statute itself, whereas they lack the congressional experience and massive time necessary to intelligently digest all other potentially

230 See supra notes 1–2, 43–50, 88–124, 192–99 and accompanying text. 231 See supra notes 44, 182, 220–22 and accompanying text. 232 See supra notes 3–7, 43–44, 150–51, 157–70, 181–82, 204–06, 220–28 and accompanying text. 233 See SCALIA, supra note 1, at 10, 16–29; SCALIA & GARNER, supra note 1, at 9–15, 18– 28, 96–98, 343–54, 377–91. 234 See Bressman & Gluck, supra note 208, at 785. 170 GEORGIA LAW REVIEW [Vol. 51:121 relevant legislative, historical, and judicial sources.235 Hence, it makes practical sense for the Court to simply construe a statute’s text according to its likely semantic meaning. Professor Gluck and Bressman’s recent study does not alter my conclusion, for two reasons. First, their assertions about shoddy, unorthodox statutory drafting and the concomitant importance of legislative history have recently been insightfully questioned.236 Second, these two scholars incorrectly (1) equate the subjective intent of Congress with its staffers’ practices, and (2) suggest that

235 Most statutes are of manageable length. To take an example from my former practice specialty, the National Labor Relations Act, 29 U.S.C. §§ 151–169 (2012) is about sixteen pages long, while Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e–2000e-17 (2012) covers approximately thirty-seven pages. Of course, some statutes are very long, sometimes exceeding a thousand pages. Abbe Gluck contends that it is impossible for courts to read such laws in their entirety, and that therefore it is unreasonable for textualists to insist that courts construe a disputed provision in light of the statute as a whole. Gluck, supra note 51, at 62, 83–86. But pragmatism is far more unrealistic in expecting judges to read such a detailed statute plus the exponentially longer accompanying legislative materials. Indeed, pragmatism guarantees that courts will have to rely on the selective culling of this information by the army of lawyers retained by a party with vast resources. A truly textualist Court would announce that it has a duty to independently read the statute at issue. Doing so would put Congress on notice that its laws would be reviewed at a pace that would become progressively faster (and less careful) as their length increased, thereby encouraging Congress to produce shorter and clearer statutes. See Bressman & Gluck, supra note 208, at 778, 794–95 (noting, but discounting, the possibility that Congress could change its drafting practices to reflect the textualist Justices’ interpretive approach, such as by making statutory text clear and actually reading it). Cf. Manning, Means, supra note 50, at 70–71 & n.408 and accompanying text (arguing that as long as the Court notifies Congress about its method of statutory interpretation and applies its rules consistently, Congress will be able to write its laws accordingly). 236 Jarrod Shobe maintains that, over the past forty years, the statutory drafting process has greatly improved because of the huge expansion of two nonpartisan entities: the Congressional Research Service (which carefully studies particular legal subjects) and the Office of Legislative Counsel (which provides professional, clear drafting). Shobe, supra note 178, at 810–13, 816–51. He argues that, as statutes became better, courts could rely more confidently on the text. Id. at 813–14, 851–64. Thus, textualist rules such as construing legislation as a whole, presuming consistency within and across statutes, and linguistic canons make sense as applied to recent statutes. Id. at 814–15, 854, 857–65. By contrast, Shobe claims that a pragmatic approach, particularly consideration of legislative history, is more justified in interpreting older laws. Id. at 814–15, 853–55, 857–60. Shobe may be correct that average statutory quality has improved since the 1970s. Nonetheless, generalizations are hazardous, as many older statutes were well written, while many recent statutes like the ACA were not. Furthermore, separation of powers casts doubt on the wisdom of judges varying their interpretive method depending on their perception of a statute’s quality—including by using its age as a proxy for quality—instead of implementing a single approach. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 171 interpretive theorists seek to capture and reflect Congress’s intent.237 Yet both textualists and pragmatists doubt the possibility of determining Congress’s actual collective intent as to statutory language that later becomes disputed in litigation.238 Rather, they have constructed normative frameworks founded upon different constitutional theories about how to resolve such indeterminacy.239 Textualists argue that focusing on a statute’s semantic meaning best comports with the judiciary’s Article III duty to respect the law that emerged from the Article I bicameralism and presentment process, despite any verbal imperfections.240 Moreover, Article I empowers Congress to control its internal procedures; its rules require a formal vote on a statute’s text; and Congress has decided to privilege its enacted law over informal legislative history.241 Courts must honor Congress’s choice, which tolerates possible inaccurate writing by Legislative Counsel and divergence from legislative history.242 The foregoing practical and constitutional considerations explain why the Justices have been unwilling to admit publicly that they are practicing pragmatism and to instead insist that they are employing a traditional, text-centered methodology.243 Furthermore, their published opinions set forth only formal legal analysis, which leaves readers to speculate about the extent of discretion being exercised in any particular case. Nonetheless, these opinions are often so unpersuasive as a matter of conventional textualist analysis that they invite a search for unspoken pragmatic reasons that are driving the decisions. 7. Talking Textualism, Practicing Pragmatism. Although every current Justice has written and joined opinions that explicitly

237 See Manning, Inside, supra note 214, at 1914–17, 1936–42, 1945–47, 1950–52. 238 See id. at 1912–13, 1916–29, 1932–33, 1940–41. 239 See id. at 1913–14, 1917, 1924–34, 1937–39, 1942, 1945–47, 1950–52. 240 See supra notes 45–49, 88–109, 192–203 and accompanying text. 241 See Manning, Means, supra note 50, at 77; Manning, Inside, supra note 214, at 1946–47. 242 See Manning, Means, supra note 50, at 77–78. 243 See SCALIA, supra note 1, at 18, 21–22; cf. Bressman & Gluck, supra note 208, at 730, 778, 787–88, 802 (submitting that the Justices, regardless of whether they are taking a textualist or flexible approach, insist that they are merely “faithful agents” carrying out Congress’s will because they are uncomfortable admitting to any independent lawmaking role). 172 GEORGIA LAW REVIEW [Vol. 51:121 endorse textualism,244 only Justice Thomas has applied this methodology consistently (along with the late Justice Scalia).245 The other Justices who implement textualism most frequently are, in order, Alito, Roberts, and Kennedy. Justice Kagan sometimes applies this approach, whereas Ginsburg, Breyer, and Sotomayor almost never do.246 This gap between textualist rhetoric and pragmatic practice might be attributed, in part, to certain similarities between these two approaches.247 For instance, textualists determine the likeliest meaning of contested statutory words by considering context (including the specific purpose stated in the text), consulting extrinsic evidence (such as dictionaries), and even resorting to legislative history if the language turns out to be hopelessly indeterminate.248 Conversely, pragmatists have never questioned the importance of text in their multi-factor

244 See Gluck, supra note 51, at 62–63, 66, 73–74, 82. 245 See Manning, New, supra note 224, at 130, 146–47 n.169, 181 and accompanying text (noting that only Justices Thomas and Scalia self-identified as textualists); see also supra note 1; infra notes 262–64, 271–73, 415–33, 445–53, 458–59, 463, 487–507, 516–23, 536, 545, 556–66, 571 and accompanying text (discussing their opinions). 246 See infra notes 243–46, 254–61, 265–70, 294–98, 301–17, 374, 396–454, 464–72, 486, 508–607 and accompanying text (analyzing opinions that illustrate this point); Manning, New, supra note 224, at 147 (deeming such Justices “purpose-sensitive textualists”). Most notably, all of the Justices (except Scalia and Thomas) have adopted a compromise position that pays close attention to text and treats legislative history with caution, but does not totally exclude it from consideration. See Manning, Second-Generation, supra note 2, at 1304, 1307–09. Moreover, because the Court has not overruled any of its cases that took a pragmatic approach, the Justices can always cite precedent to support their rulings. Indeed, Professor Gluck has contended that the Court’s unpredictable style of statutory interpretation stems from its treatment of principles of construction as background presumptions and linguistic conventions rather than “real” law—i.e., common law rules with precedential effect that are applied consistently and predictably. See Gluck, supra note 51, at 62–63, 81, 85–87, 103. Although the Court’s adoption of such a “law” of interpretation might constrain its discretion, I believe the impact would be negligible because result-oriented Justices can easily manipulate precedent. See generally Pushaw, Perils, supra note 161. For example, if the Court before National Federation and King had held that textualism and canons like “constitutional avoidance” and Chevron were binding law, the majority would almost surely have applied those “legal rules” to reach the same result. Accordingly, the Court should recognize that the arbitrary nature of its statutory interpretation raises serious legitimacy concerns and should therefore “tie itself to the mast” by clearly articulating interpretive standards and consistently applying them, regardless of how they are labeled. 247 See POSNER, supra note 222, at 48–49; Manning, What Divides, supra note 129, at 75– 92, 110; Manning, New, supra note 224, at 132; Jonathan T. Molot, The Rise and Fall of Textualism, 106 COLUM. L. REV. 1, 3, 32–35 (2006). 248 See supra Subsection II.A.6.a. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 173 analysis, although they also assign special weight to overall purpose.249 Nevertheless, genuine textualists remain distinctive in that they will enforce the clear semantic meaning of statutory words, even if doing so may not fit well with Congress’s overarching purpose or may have negative (but not absurd) consequences.250 By contrast, the Court often purports to apply textualism but deems clear language ambiguous and then rewrites it to reach a result that seems to better promote Congress’s overall purpose and policies.251 Many cases illustrate this point. A good example is Zuni Public School District v. Department of Education, which concerned a statute prescribing the method that the Secretary of Education must use to determine whether a State’s public school funding “equalizes expenditures” throughout the State.252 The Secretary must calculate the disparity in per-

249 See supra Subsection II.A.6.b. 250 See supra notes 1–2, 44–49, 183–203, 235, 240 and accompanying text. John Manning emphasizes this core distinction between textualism and pragmatism. See Manning, What Divides, supra note 129, at 73–77, 91–111. 251 Professor Manning acknowledges that the Court still has many “purposivists” (like Justices Breyer and Ginsburg) who consult any materials (including legislative history) that might illuminate Congress’s objectives. See Manning, New, supra note 224, at 115–17, 131– 32, 165–67, 171, 174, 181. Nonetheless, he asserts that these Justices, unlike their pre- Rehnquist Court brethren, have disclaimed power to deviate from the clear semantic meaning of statutory text when it conflicts with the statute’s overall purpose. See id. at 113–32, 140, 146–48, 166–82. Rather, they recognize that Congress achieves its ultimate purposes through different implementing means, as signaled by textual language framed at different levels of generality that supplies cues to judges about how and to what extent ultimate purpose should be taken into account in interpretation. Id. at 115–19, 132, 146–48, 152–53, 156–57, 164–67, 169–76, 181–82. For example, precise rules (e.g., 55 MPH) constrain or eliminate judicial discretion to invoke ultimate purposes. Id. at 116–17, 132–37, 148, 152–53, 164, 169, 172–73. By contrast, general and open-ended standards (like “reasonable speed”) allow for more discretion to achieve Congress’s ultimate purpose through common law development. See id. at 116–17, 137–41, 148, 152–53, 164, 169–73, 181. Professor Manning cites many cases to support his thesis. Id. at 116–17, 127–28 n.75 and accompanying text, 129–30 (citing cases). However, the Court’s express disclaimer of power to rely on purpose to subvert clear text does not mean it has abandoned this practice. Professor Manning does cite a few such cases, but treats them as aberrations. Id. at 128–29 n.80 and accompanying text. By contrast, I believe they are more common, as both ACA cases illustrate. 252 550 U.S. 81, 84–85 (2007) (citing the Federal Impact Aid Act (FIAA), 20 U.S.C. § 7709(b)(1) (2000)). The FIAA provides federal aid to local school districts whose ability to fund public education is negatively affected by the federal presence (for example, a military base). FIAA, 20 U.S.C. § 7701. States cannot offset this federal aid by decreasing state

174 GEORGIA LAW REVIEW [Vol. 51:121 pupil expenditures among school districts (with a gap of less than 25% meeting the “equalized” standard), but must “disregard” districts “with per-pupil expenditures . . . above the 95th percentile or below the 5th percentile [statewide].”253 Justice Breyer, joined by liberal Justices Ginsburg and Stevens (who wrote a separate concurring opinion)254 and by conservative Justices Kennedy and Alito (who also concurred),255 assertedly sought to determine “the statute’s plain language.”256 The majority acknowledged that the statute’s words literally required the Secretary to disregard certain districts based solely on the size of their per-pupil expenditures (i.e., those in the top or bottom fifth percentile), but nonetheless held that the number of each district’s pupils could also be considered.257 Initially, Justice Breyer deemed the Secretary’s “calculation formula . . . a reasonable method” and consistent with Congress’s “likely intent.”258 The Court then turned to “the provision’s literal language”:

[N]ormally neither the legislative history nor the reasonableness of the Secretary’s method would be determinative if the plain language of the statute unambiguously indicated that Congress sought to foreclose the Secretary’s interpretation. And [petitioner] argues that the Secretary’s formula could not possibly effectuate Congress’ intent since the assistance to a local school district, id. § 7709(a), except where the Secretary finds that the state is seeking to equalize per-student expenditures among districts. Id. § 7709(b)(1). 253 FIAA, 20 U.S.C. § 7709(b)(2). 254 See Zuni, 550 U.S. at 105–07 (Stevens, J., concurring) (maintaining that the Court must carry out Congress’s intent, especially as manifested in legislative history, even if doing so conflicts with the text). 255 Id. at 107 (Kennedy, J., concurring, joined by Alito, J.) (agreeing with Justice Breyer’s basic analysis, but criticizing him for not strictly following the Chevron framework). 256 Id. at 94 (opinion of the Court by Breyer, J.). 257 Id. at 84, 89–90, 98–100. 258 Id. at 93. The Court inferred this intent from three items. First, Congress typically delegates such a “highly technical, specialized interstitial matter” to an expert agency. Id. at 90. Second, the relevant statutory language from 1994—which replaced a provision leaving the definition of “equalize[d] expenditures” to the Secretary, who issued a regulation with the formula that has been used since 1976—was based on the Secretary’s own proposal, and neither he nor anyone else ever indicated an intent to change the longstanding calculation system. Id. at 90–91. Third, this method reasonably furthered the purpose of the “disregard instruction,” which was “to exclude statistical outliers” (i.e., districts in the top or bottom five percent). Id. at 91. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 175

statute’s language literally forbids the Secretary to use such a method. Under this Court’s precedents, if the intent of Congress is clear and unambiguously expressed by the statutory language at issue, that would be the end of our analysis. See Chevron . . . . [But] we believe that the Secretary’s method falls within the scope of the statute’s plain language.259

To justify this conclusion, the Court asserted that the statute’s text did not preclude the Secretary from using a calculation formula that distributes districts according to “per pupil expenditures” while also weighting each district to reflect its number of students.260 Likewise, the context suggested that the “disregard instruction” could include “the distribution of a ranked population . . . consist[ing] of pupils,” and not simply “a ranked distribution of unweighted school districts.”261 In dissent, Justice Scalia (joined by Chief Justice Roberts and Justice Thomas in full and Justice Souter in part)262 contended that the text clearly directed the Secretary to use a method that disregarded outlier school districts based exclusively on the amount of their “per pupil expenditures,” and therefore prohibited the Secretary from also accounting for each district’s student population.263 The dissent charged the majority with ignoring the law and imposing their policy-driven suppositions about “unenacted congressional intent and judicially perceived statutory purpose.”264 Overall, in Zuni the Justices filed five separate opinions, which shows how pronounced disagreements about statutory

259 Id. at 93–94. 260 Id. 261 Id. at 99. 262 See id. at 123 (Souter, J., dissenting) (agreeing with Justice Scalia that the statutory language was unambiguous and therefore had to be enforced according to its terms, even though the majority correctly concluded that Congress subjectively understood that the Secretary would continue to follow his previous method). 263 See id. at 108–22 (Scalia, J., dissenting). 264 Id. at 108; see also id. at 108–09 (assailing the majority for inverting the customary analysis by starting not with the statute’s text, but with its supposed intent and purpose, and then claiming that the text did not “unambiguously preclude”—as opposed to support— the Secretary’s interpretation). 176 GEORGIA LAW REVIEW [Vol. 51:121 interpretation are. Most significantly, Justice Breyer could not bring himself to admit the obvious: that he was applying a pragmatic approach to hold that the statute’s underlying intent, purposes, and history overrode the seemingly clear meaning of its text. Rather, he insisted that his construction reflected the Act’s “plain”—as contrasted with “literal”—language.265 But this verbal sleight of hand eviscerates textualism, which enforces the ordinary usage of words.266 Consequently, Justice Breyer should have openly based his interpretation on pragmatic grounds, thereby bringing his judicial opinions in line with his scholarly writings.267 Similar to Zuni is Bond v. United States, which involved a statute that criminalized the use of “any chemical weapon”— defined as a “toxic chemical” that can cause death or physical harm.268 Chief Justice Roberts’s majority opinion rejected the government’s argument that this law could be extended to Bond, a “jilted wife” who had put toxic chemicals on the doorknob of her husband’s lover, thereby causing a minor hand burn.269 He asserted that (1) the government had created an ambiguity in the statutory definition of “chemical weapon” by giving it such an “improbably broad reach” with such “deeply serious consequences”; (2) federalism principles resolved that ambiguity, as Congress did not clearly state its intent to override the historical practice of leaving local crimes to the states; and (3) the Court therefore should give the term “chemical weapon” its ordinary meaning in the context of a law implementing a treaty concerning chemical warfare and terrorism, which did not include simple assault.270 Justice Scalia, joined by Justices Thomas and Alito, argued that it was “clear beyond doubt that [the statute] covers what Bond did”: She used a “chemical weapon” as defined in the statute—a “toxic chemical” that can cause physical harm.271 He concluded

265 Id. at 89, 93–94 (majority opinion). 266 A leading scholar has argued that Zuni illustrates that pragmatic Justices “accept the constraints of statutory text while also displaying a willingness to derive purpose from the legislative history in cases of statutory ambiguity.” See Manning, supra note 224, at 141. On the contrary, the Court made mincemeat of the text and instead invoked legislative history and purpose to create—and then resolve—a nonexistent “ambiguity.” 267 See supra notes 204–06, 223–24 and accompanying text. 268 134 S. Ct. 2077, 2085 (2014) (citing statute). 269 See id. at 2086–94. 270 Id. at 2087–94. 271 Id. at 2094 (Scalia, J., concurring in the judgment). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 177 that neither federalism nor the broad application of that statutory provision made it ambiguous, so that the Court had to honor Congress’s express definition of “chemical weapon.”272 The majority purported to take a textualist approach, but instead made up an ambiguity in the phrase “chemical weapon” and resolved it by considering nontextual factors. Justice Scalia complained that the Court’s “result-driven antitextualism befogs what is evident.”273 Indeed, it is hard to imagine a more unambiguous expression of Congress’s intent than an explicit statutory definition, as the Court invariably recognized until the past few years.274 Yet even Justice Scalia twice ignored such a definition to reach his preferred policy result.275 Although such instances remain rare, Bond also illustrates a routine Rehnquist/Roberts Court practice: demanding exceedingly “clear statements” in statutes before they will be interpreted as interfering with some abstract value prized by the Court, usually based on its vague inferences from nontextual constitutional principles (e.g., federalism, separation of powers, state sovereign immunity, and privacy).276 The Court’s substitution of its favored policy for that contained in statutory text is especially troubling in cases that analyze

272 See id. at 2095–97; see also Nicholas Quinn Rosenkranz, Bond v. United States: Concurring in the Judgment, 2014 CATO SUP. CT. REV. 285, 288–94 (demonstrating that the Court ignored its longstanding practice of implementing definitions of terms in a statute’s text). Effectuating the statute’s plain meaning required reaching the constitutional question, and Justice Scalia determined that the Act had exceeded Congress’s enumerated powers. Bond, 134 S. Ct. at 2098–2102 (Scalia, J., concurring in the judgment). 273 See Bond, 134 S. Ct. at 2095 (Scalia, J., concurring in the judgment). 274 See Rosenkranz, supra note 51, at 292 (writing in 2002 that a universally accepted interpretive principle was that judges must honor Congress’s express statutory definitions). 275 See infra notes 279, 318–22, 327–28 and accompanying text. 276 See John F. Manning, Clear Statement Rules and the Constitution, 110 COLUM. L. REV. 399, 400–27 (2010) (cataloguing such rules and the scholarly debate over them); id. at 404–05, 427–50 (arguing that these rules mistakenly assumed that the Constitution contains abstract “values” that can meaningfully be identified and enforced apart from the specific constitutional clauses from which they are derived). Other Court values are common law creations, such as the presumption that federal statutes do not extend outside the United States. See Manning, Means, supra note 50, at 31–32, 71–73 (citing exemplary constitutional and common law cases and acknowledging that they cannot be reconciled with either textualism or the post-New Deal Court’s broader deference to Congress’s judgments); see also Gluck & Bressman, supra note 208, at 907, 940–42, 945–46, 949, 956–58, 1016 (showing that “clear statement” rules, except for some that promote federalism, do not reflect actual legislative practice). 178 GEORGIA LAW REVIEW [Vol. 51:121 whether Congress preempted state law. The modern Court has lavished attention on this doctrine because of its surpassing real- world importance, particularly in determining whether federally regulated enterprises (like drug manufacturers) are liable under state tort law.277 Since 1947, the Court has generally applied a federalism-based presumption against preemption to preserve state regulation, absent a “clear and manifest” contrary statement by Congress.278 Federal statutes often lack such express preemption clauses, yet the Court has often found preemption to be implied, which seems to contradict its “clear statement” rule.279 Zuni, Bond, and the preemption cases exemplify the Court’s pattern of officially adopting textualism as its general methodology while applying pragmatic reasoning. The Justices have similarly manipulated the canons of construction.

B. THE INTERPRETIVE CANONS

Scholars have identified seventy such maxims, many so old that they bear Latin names.280 For example, noscitur a sociis provides that the meaning of an ambiguous term can be determined by examining the words associated with it,281 and ejusdem generis deems general words that follow specific ones in a list as including

277 See ALAN E. UNTEREINER, THE PREEMPTION DEFENSE IN TORT ACTIONS 53–54, 266–79 (2008). 278 See, e.g., Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). An example of such express preemption is a federal statute providing that it “shall supersede any and all State laws” on the subject covered (employee benefit plans). See English v. Gen. Elec. Co., 496 U.S. 72, 78–79 (1990). 279 See UNTEREINER, supra note 277, at 53–54, 266–79; see also Wyeth v. Levine, 555 U.S. 555, 601–02 (2009) (Thomas, J., concurring) (arguing that implied preemption cannot be squared with textualism). Moreover, textualists sometimes apply implied preemption in tandem with other nontextual analysis. See, e.g., AT&T Mobility, Inc., v. Concepcion, 131 S. Ct. 1740, 1748–53 (2011) (Scalia, J.) (holding that the Federal Arbitration Act, which has the overarching purpose of strictly enforcing arbitration agreements to promote speedy and informal dispute resolution, required enforcement of a contract allowing only for individual arbitration and thus (1) impliedly preempted a California law authorizing class arbitrations, and (2) foreclosed a class action for fraud seemingly authorized by federal statute); see also id. at 1753–62 (Thomas, J., concurring) (lamenting the insufficiently textualist nature of the analysis). 280 Many canons apply to all legal documents. See SCALIA & GARNER, supra note 1, at 42– 44, 51–246. Others primarily concern statutes and constitutions. Id. at 247–414. 281 See, e.g., Gustafson v. Alloyd Co., 513 U.S. 561, 576 (1995); SCALIA & GARNER, supra note 1, at 195–98. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 179 only people or items similar in kind to the specific words.282 Most importantly, individual statutory provisions are construed in light of the legislation as a whole, and therefore (1) a term is presumed to have the same meaning throughout a statute,283 and (2) every word should be given effect and hence not read in a way that creates surplusage with other provisions.284 Some canons encourage deference to the political branches. For instance, a court should interpret a statute, where reasonably possible, to avoid constitutional questions and thereby foreclose the potential embarrassment to Congress of invalidating its law.285 Similarly, under Chevron, if Congress has “not directly addressed the precise question at issue,” judges must accept an executive agency’s “permissible” construction of ambiguities in its governing statute.286 Finally, certain canons promote comity with States.287 The canons have long been assailed as worthless, formalistic tools invoked to conceal discretionary practical and policy

282 See, e.g., Paroline v. United States, 134 S. Ct. 1710, 1721 (2014); Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2171 (2012); SCALIA & GARNER, supra note 1, at 199–213. Another familiar maxim, expressio unius est exclusio alterius, holds that the expression of one thing implies the exclusion of others. See, e.g., W. Va. Univ. Hosp. v. Casey, 499 U.S. 83, 88–92 (1991); SCALIA & GARNER, supra note 1, at 107–11. Federal statutory drafters, although unaware of textual canons like noscitur, ejusdem, and expressio unius by name, intuitively grasp these concepts because they reflect common-sense usage. See Gluck & Bressamn, supra note 208, at 907, 930–33, 952–53, 1016. 283 See SCALIA & GARNER, supra note 1, at 170–73. 284 See id. at 174–79; SCALIA, supra note 1, at 16, 23; but see Posner, supra note 5, at 812 (contending that it is unreasonable to assume that statutes, unlike all other legal materials, contain no redundancy). 285 See SCALIA & GARNER, supra note 1, at 247–51; see also Gluck & Bressman, supra note 208, at 927–28, 940–41, 947–49, 958, 1016 (establishing that statutory drafters intuitively understand the “constitutional avoidance” canon). I will not enter the scholarly debate as to the validity and wisdom of avoiding constitutional questions, except to observe that this maxim often leads courts to adopt statutory constructions that strain credulity. 286 See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 842–43 (1984); see also Gluck & Bressman, supra note 208, at 906–07, 940, 942–44, 949, 958–59, 992–98, 1012, 1016 (demonstrating that statutory drafters are very familiar with Chevron but reject the Court’s justification that ambiguity signals Congress’s intent to delegate, and instead believe that this lack of clarity results from inattention, lack of time, complexity, or a need for consensus). Judge Posner points out that agencies are unlikely to implement the intent of the Congress that enacted the legislation, as contrasted with the current policies favored by the President. See Posner, supra note 5, at 810–11. 287 For example, ambiguous statutes are interpreted as not interfering with traditional state functions and as not preempting state law. See supra notes 276–79 and accompanying text. 180 GEORGIA LAW REVIEW [Vol. 51:121 judgments.288 Yet many such rules can be helpful, particularly in decoding doubtful statutory language.289 For example, some canons reflect common-sense assumptions about English usage, such as that the meaning of a term can often be determined in the context of surrounding words.290 Other guidelines, like avoiding unnecessary decision of constitutional questions and Chevron, can promote judicial restraint and democratic governance.291 The problem, then, is not the canons per se, but their application. Courts should never resort to such rules unless doing so is necessary because statutory language is unclear. Unfortunately, the Justices are adept at manufacturing an ambiguity out of words that have one obvious meaning to an average reader, then citing a canon to justify choosing a different meaning. Moreover, they tend to invoke these maxims to reinforce the conclusion they have already reached after employing their general theory of statutory interpretation. That propensity, and the overall malleability of canons, can be seen in almost any statutory case. A recent example is Yates v. United States, which involved a commercial fisherman who, having been instructed by a federal inspector to keep on his boat undersized fish he had caught illegally, instead threw them overboard.292 He was convicted of violating a statute (18 U.S.C. § 1519) imposing criminal penalties on anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence” a federal investigation.293

288 See KARL N. LLEWELLYN, THE COMMON LAW TRADITION 521–35 (1960) (arguing that every canon has an opposite canon, so that statutory interpretation involves a discretionary choice between paired opposites); Posner, supra note 5, at 805–22 (asserting that these canons are not considered by legislators when they draft legislation, are useless as common- sense guideposts, do not constrain judges, and do not limit the delegation of lawmaking power to courts). Less harshly, the Court has recognized that the canons are merely “rule[s] of thumb” that are necessarily flexible in application. See, e.g., Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct. 817, 825–26 (2013). 289 See Jonathan R. Macey & Geoffrey P. Miller, The Canons of Statutory Construction, 45 VAND. L. REV. 647 (1992). 290 See supra note 281 and accompanying text (discussing noscitur a sociis). 291 See supra notes 285–86 and accompanying text. 292 135 S. Ct. 1074, 1078 (2015). 293 Id. (quoting 18 U.S.C. § 1519) (emphasis added). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 181

Justice Ginsburg, joined by Chief Justice Roberts and Justices Breyer and Sotomayor, reversed the conviction because a Section 1519 “tangible object” was limited to a thing “used to record or preserve information.”294 This plurality conceded that fish fell within the ordinary meaning of “tangible object”: “a discrete thing . . . that possesses physical form.”295 Nonetheless, these Justices concluded that this seemingly clear definition should not prevail in light of the statute’s context.296 They applied the canons noscitur a sociis and ejusdem generis to hold that the phrase “tangible object,” as the last term in a list that begins with “any record [or] document,” should be read to refer only to similar “tangible objects” (i.e., those used to record or preserve information, such as hard drives).297 The plurality also stressed that the verbs “falsify” and “make a false entry” typically precede nouns conveying recorded information; one does not “falsify” fish.298 In a concurrence, Justice Alito employed “traditional tools of statutory construction” to find that Section 1519’s “list of nouns” (interpreted with the aid of noscitur a sociis and ejusdem generis), its “list of verbs” (especially “falsifies” and “alters”), and its title (referencing “records”) all indicated that “tangible object” signified something similar to records or documents.299 Hence, this phrase was most reasonably read as covering “filekeeping, not fish.”300 In dissent, Justice Kagan, joined by Justices Scalia, Kennedy, and Thomas, argued that “tangible object” meant a physical thing, both in everyday language and in context.301 In their view, this broad definition was reinforced by other words in Section 1519: its reference to “any” (i.e., all kinds of) tangible objects; its inclusion of many verbs (including “destroys,” “conceals,” and “covers up”) which

294 Id. at 1078, 1081. 295 Id. at 1081. 296 See id. at 1081–89. 297 Id. at 1085–87. 298 Id. at 1086. The plurality also emphasized two other textual clues. First, Section 1519’s heading—“Destruction, alteration, or falsification of records in Federal investigations and bankruptcy”—targets records, not physical evidence. See id. at 1083. Second, Section 1519 appeared directly after provisions aimed at corporate fraud and financial audits. See id. at 1083–84. 299 Id. at 1089–90 (Alito, J., concurring). 300 Id. at 1090. 301 Id. at 1090–1101 (Kagan, J., dissenting). 182 GEORGIA LAW REVIEW [Vol. 51:121 apply to physical evidence; and its addition of the catch-all phrase “tangible object” after the words “records” and “documents.”302 Similarly, this expansive interpretation furthered Congress’s “evident purpose” of punishing anyone “who alter[s] or destroy[s] physical evidence—any physical evidence—with the intent of thwarting federal law enforcement.”303 Turning to precedent, Justice Kagan demonstrated that her construction comported with the definition of “tangible object” that had been adopted in interpreting hundreds of laws that contained this phrase.304 Finally, she stressed that, by immunizing the fisherman from prosecution, the plurality had undermined Congress’s policy goal of punishing the destruction of evidence, whether documentary or physical.305 As a general approach to statutory interpretation, Yates is preferable to Zuni because neither the plurality nor Justice Alito pretended that their construction reflected the plain meaning of “tangible object.”306 Instead of explicitly embracing pragmatism, however, these Justices relied heavily on canons.307 But a judge should resort to such rules only when needed to determine the meaning of words that are unclear—not to torture an ambiguity out of language (like “tangible object”) that is plain.308 Furthermore, these canons can be invoked to justify almost any result. Take noscitur a sociis and ejusdem generis. The plurality and concurring opinions reasonably maintained that the phrase “tangible object” appears at the end of a list, after the words “records” and “documents,” and thus should have been read narrowly as including only a similar object (i.e., a thing that preserves information).309 By contrast, the dissent with even more plausibility contended that these canons require the identification of a common trait in a statutory phrase—here, encompassing

302 See id. at 1091–93. 303 See id. at 1091. 304 See id. at 1091–93. She also pointed out that “legislative history, for those who care about it,” confirmed Congress’s intent to use “tangible object” in its usual broad sense. See id. at 1093–94. 305 See id. at 1094. 306 See id. at 1081–87 (plurality opinion); id. at 1089–90 (Alito, J., concurring). 307 See id. at 1085–88 (plurality opinion); id. at 1089 (Alito. J., concurring). 308 See supra p. 188. 309 See Yates, 135 S. Ct. at 1078, 1081 (plurality opinion); id. at 1089 (Alito. J., concurring). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 183 items (records, documents, and physical objects) that do not merely preserve information but also provide it to serve as evidence in legal proceedings.310 In Yates, the canons were deployed as window dressing to rationalize an interpretation reached on other grounds. Once the distraction of the canons is removed, the dissent’s construction emerges as superior. Section 1519’s text, purpose, intent, and policy goals, as well as all pertinent precedent, reveal that Congress added the word “tangible object” after “record” and “document” to sweep in any physical thing that might be destroyed to impede a federal investigation. Justice Kagan asserted that “none of the traditional tools of statutory interpretation can produce today’s result,” and she accused Justices Ginsburg and Alito of “rewrit[ing] the law” because they thought that it gave prosecutors too much discretion and permitted excessive penalties.311 Although Kagan’s criticism is on the mark, this sort of chicanery happens regularly, often with her approval.312 And it rarely registers on the public radar. Most statutory decisions, like Zuni and Yates, involve technical issues of interest to few people. But the Justices’ manipulation of both interpretive methodology and canons also occurs in high-visibility cases. A recent example involved greenhouse gases. The Clean Air Act (CAA) imposes permitting requirements on any “major” stationary sources—those that can emit 250 tons per year of “any air pollutant.”313 The CAA provides a single definition of “air pollutant”: “any physical, chemical, biological, [or] radioactive . . . substance or matter” emitted into the air.314 The EPA long interpreted this definition as including only conventional pollutants like lead, but in 2007 extended its coverage to greenhouse gases, albeit in the context of motor vehicles.315 Nonetheless, the EPA recognized that greenhouse gas emissions

310 See id. at 1091–94, 1097–1100 (Kagan, J., dissenting). 311 See id. at 1100–01. 312 See, e.g., infra Subsections III.C.2 and III.D (discussing the National Federation and King decisions, which Justice Kagan joined). 313 See Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2435–36 (2014) (citing CAA provisions). 314 Id. at 2439 (citing statute). 315 Id. at 2434–37. 184 GEORGIA LAW REVIEW [Vol. 51:121 above the 250-ton threshold are common in stationary sources, so that requiring permits for all of them would radically expand those programs to include not only major industries like factories (the intended permitting targets), but also buildings like schools, stores, and even large homes.316 Accordingly, the EPA issued a “Tailoring Rule” exempting sources unless they potentially emitted over 100,000 tons of greenhouse gases per year.317 In Utility Air Regulatory Group v. EPA,318 Justice Scalia, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito, held that the EPA had exceeded its statutory authority by interpreting the CAA as subjecting stationary sources to permitting requirements on the sole basis of the source’s potential to emit greenhouse gases.319 The Court acknowledged that the Act-wide definition of “air pollutant” included greenhouse gases and that the same terms are presumptively used the same way in a statute.320 Justice Scalia concluded, however, that this “consistent usage” canon should not be applied in the specific context of the permitting provisions because regulating greenhouse gases at the statutory “250 ton” emission threshold would produce absurd results:

[T]here is no insuperable textual barrier to EPA’s interpreting “any air pollutant” in the permitting [provisions] . . . to encompass only pollutants emitted in quantities that enable them to be sensibly regulated at the statutory thresholds, and to exclude those atypical pollutants that, like greenhouse gases, are emitted in such vast quantities that their inclusion would radically transform those programs and render them unworkable as written.321

316 Id. at 2436–37. 317 Id. at 2437–38. 318 134 S. Ct. 2427 (2014). 319 See id. at 2439–46 (Scalia, J., joined by Roberts, C.J., and Kennedy, J.); id. at 2455–58 (Alito, J., joined by Thomas, J.) (concurring in part and dissenting in part) (agreeing with this holding, but not with another part of Justice Scalia’s opinion). 320 See id. at 2439–41 (Scalia, J., joined by Roberts, C.J., and Kennedy, J.). 321 Id. at 2442; see also id. at 2439–46 (asserting that the CAA’s generic definition of “air pollutants” merely refers to substances that the EPA may—but need not—regulate, and

2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 185

The majority then ruled that, under Chevron, the EPA’s Tailoring Rule was an unreasonable construction of the statute because it effectively amended the CAA (by changing the threshold from 250 to 100,000 tons to trigger the permitting requirements) and because, even at that higher level, the agency imposed huge and unanticipated burdens that Congress did not authorize.322 Justice Breyer wrote for three other dissenters (Justices Ginsburg, Sotomayor, and Kagan) to disagree with the Court that “the only way to avoid an absurd or otherwise impermissible result . . . is to create an atextual greenhouse gas exception to the phrase ‘any air pollutant.’ ”323 Initially, the dissenters noted that under a literal reading of the CAA, its general definition of “air pollutants” included greenhouse gases, so such gases fell within the phrase “any air pollutants” in the permitting provisions.324 Such a rigid interpretation, however, would undermine both the Act’s overall purpose (to enhance air quality and promote public health) and the specific intent behind the permitting provisions (to limit the program’s obligations to “large sources” of pollutants).325 Therefore, Justice Breyer argued that, under Chevron, the EPA had plausibly construed the CAA in light of these purposes by making an implicit exception to the permitting requirements for relatively small stationary sources of greenhouse gases—not, as the majority would have preferred, an exception to the pollutants covered.326 In Utility Air, the Court’s professed textualists abandoned that approach and manipulated established canons to reach the pragmatic political goal of curbing the EPA’s ability to regulate greenhouse gases. Contrary to the bedrock textualist rule that the Court must accept Congress’s definitions and the linguistic canon of consistent usage,327 Justice Scalia complained that “Congress’s profligate use of ‘air pollutant’ where what is meant is obviously narrower than the Act-wide definition is not conducive to that the EPA should have made an exception for greenhouse gas pollutants in the specific context of the permitting provisions to preserve the statute’s overall structure). 322 See id. at 2442–44. 323 See id. at 2452 (Breyer, J., dissenting). 324 See id. at 2450. 325 See id. at 2451–55. 326 See id. at 2452–55. 327 See supra notes 272–74, 283, 320 and accompanying text. 186 GEORGIA LAW REVIEW [Vol. 51:121 clarity.”328 Finally, the majority failed to show appropriate deference under the Chevron rule.329 The foregoing cases demonstrate that the Court exercises almost unbridled discretion in statutory interpretation. The dangers of this approach became widely apparent in the two decisions that salvaged the landmark Affordable Care Act.

III. THE OBAMACARE CASES

The Justices’ bitter interpretive disagreements over the ACA mirrored the acrimony created by congressional Democrats, who used unorthodox procedures to ram through this long and badly written law. I will begin by summarizing the key provisions, then explain the legislative process that produced them.

A. OBAMACARE IN A NUTSHELL

Congress’s main goal was to improve access to health insurance for the 15% of Americans who lacked it.330 Accordingly, the ACA prohibits insurers from charging higher premiums based on individual characteristics such as pre-existing medical conditions.331 Instead, the Act requires “guaranteed issue” of policies to all applicants and “community rating” (i.e., the same price for everyone of the same age in a geographical area).332 Standing alone, however, these requirements would bankrupt insurers, who would have to issue policies to older and sicker

328 See Utility Air, 134 S. Ct. at 2441 (majority opinion). Indeed, even Scalia’s most prominent academic defender, John Manning, rejected the notion that “the same phrase, used in the same way, means different things in different parts of a statute because a uniform reading would produce untoward policy results.” See Manning, Means, supra note 50, at 72 n.411. In a similar deviation from textualism, Justices Scalia and Thomas joined an opinion that relied upon extrinsic evidence to interpret the Food, Drug, and Cosmetics Act (FDCA) provision authorizing the FDA to regulate “articles . . . intended to affect . . . any function of the body” as not including tobacco products, even though they appeared to fall plainly within that definition and the law’s public health purpose. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 126, 129, 143–61 (2000) (citing 21 U.S.C. § 321(g)(1)(C)); id. at 161–92 (Breyer, J., dissenting) (setting forth a textualist counterargument). 329 See Utility Air, 134 S. Ct. at 2454 (Breyer, J., dissenting). 330 See S. REP. NO. 111-89, at 1 (2009); H.R. REP. NO. 11-299, Part 3, at 56 (2009). 331 See ACA, 42 U.S.C. § 300gg 3–-4. 332 See id. §§ 300-e, 300e-1, 300gg-1. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 187

Americans (whose total medical expenses would typically exceed their premiums) but could not make up these losses with younger and healthier people (who would incur overall costs that were less than their premiums).333 The latter group would have an incentive to refrain from buying insurance until they became seriously ill, at which point they would be assured coverage that would be far cheaper than their medical bills.334 Such adverse selection would eventually create a “death spiral” that would destroy insurance markets.335 To avoid such problems, Obamacare imposes an “Individual Mandate” (IM) on most citizens to buy health insurance and a monetary “penalty” on those who fail to do so.336 To facilitate such purchases, the ACA provides that “[e]ach State shall . . . establish an American Health Benefit Exchange”—a government agency or nonprofit that operates an insurance enrollment website.337 If a State does not create such an Exchange, the federal HHS must do so.338 Obamacare provides a tax credit to those who have incomes between 133%–400% of the federal poverty level and buy insurance on “an Exchange established by the State.”339 This subsidy had two purposes. First, it would reduce the number of people Congress exempted from the IM—those deemed too poor to purchase insurance because they would have to spend more than 8% of their income on it.340 Second, it would promote federalism by encouraging States to create and operate Exchanges.341 Finally, for Americans whose income falls below 133% of the poverty line, the ACA dramatically expands Medicaid by requiring States to either provide health care or lose all of their current federal Medicaid funding.342

333 See ACA, 42 U.S.C. § 18091(2)(I) (congressional findings); see also Andrew Koppelman, “Necessary,” “Proper,” and Health Care Reform, in THE HEALTH CARE CASE 106 (Nathaniel Persily, Gillian E. Metzger & Trevor W. Morrison eds., 2013). 334 See ACA, 42 U.S.C. §18091(2)(I). 335 See id. 336 See ACA, 26 U.S.C. § 5000A. 337 ACA, 42 U.S.C. § 18031(b)(1)(A), (d)(1)–(4). 338 See id. § 18041(c). 339 See ACA, 26 U.S.C. § 36B(c)(2)(A)(I). 340 See ACA, 26 U.S.C. §§ 5000A(e)(1)(A), (B); see also S. REP. NO. 111-89, at 2–4 (2009). 341 See infra notes 357–58, 533–37, 544–46, 563–66 and accompanying text. 342 See ACA, 42 U.S.C. § 1396(a)(10)(A)(i)(VIII). 188 GEORGIA LAW REVIEW [Vol. 51:121

In sum, Congress sought to increase the availability of health insurance through a combination of guaranteed issue, the IM, the Exchanges, and expanded Medicaid.

B. PASSING OBAMACARE

The ACA addressed a large coverage gap that developed because millions of people did not receive health insurance through their employers, yet were ineligible for Medicare (because they were under sixty-five) or Medicaid (because their incomes were above the poverty level).343 Although Congress had long realized that reforms were needed, it could never agree on an alternative, chiefly because control of the political branches was divided between the Democratic and Republican Parties.344 In the November 2008 elections, however, Democrats won the presidency and majorities in both the House and Senate.345 President Obama asked Congress to make health care a top priority.346 The House and Senate drafted separate bills, each with the IM as the linchpin.347 Republicans unanimously opposed the IM on the constitutional ground that Congress did not have the power to force Americans to buy an unwanted product.348 Indeed, Senate Republicans promised to filibuster the bill, which would require sixty votes to end, and the Democrats fell just short.349 Obama urged Congress to press forward, despite significant public opposition.350 On November 7, the House passed the Affordable Health Care for America Act (AHCAA) by a slim 220–215 margin and referred it to the Senate.351

343 See Koppelman, supra note 333, at 106; STEPHEN M. DAVIDSON, A NEW ERA IN U.S. HEALTH CARE 2–4 (2013); STEVEN BRILL, AMERICA’S BITTER PILL: MONEY, POLITICS, BACKROOM DEALS, AND THE FIGHT TO FIX OUR BROKEN HEALTHCARE SYSTEM 23–26 (2015). 344 See JOSH BLACKMAN, UNPRECEDENTED: THE CONSTITUTIONAL CHALLENGE TO OBAMACARE 1, 4–6 (2013). 345 See id. at xx. 346 See id. at 29. 347 See id. at 31. 348 See Ezra Klein, Unpopular Mandate: Why Do Politicians Reverse Their Positions?, NEW YORKER 30–33 (June 25, 2012). 349 See Carl Hulse, Obama Tactic Shields Health Care Bill From a Filibuster, N.Y. TIMES (Apr. 25, 2009), at A1. 350 See BLACKMAN, supra note 344, at 32–35. 351 See H.R. 3962, 111th Cong. (2009). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 189

Instead of taking up the AHCAA, however, the Senate considered a completely unrelated House bill that amended federal tax law,352 which cleverly enabled the Senate to treat it as a revenue bill that could be extensively modified.353 In fact, the Senate gutted the bill and substituted its own health care proposals, which became the ACA.354 By this time, Democrats had obtained a seemingly filibuster-proof majority of sixty.355 However, several moderate Democrats refused to support the ACA unless certain conditions were met356—most significantly, that the House language establishing a single federal Exchange be replaced by a provision granting States primary responsibility to create and operate Exchanges (with HHS as a backup if a State unexpectedly failed to do so).357 These concessions were essential to the Senate’s approval of the ACA on December 24 by a party-line vote.358 Surprisingly, however, Republican Scott Brown won a special Senate election in January 2010 to replace Ted Kennedy, a

352 Service Members Home Ownership Tax Act of 2009, H.R. 3590, 111th Cong. (2010 1st Sess.). 353 See id.; see also Warren Richey, New Bid to Topple Obamacare in Court: Did Harry Reid Bend the Rules?, CHRISTIAN SCI. MONITOR, May 8, 2014, at A1. 354 See H.R. 3590, Amend. 2768, 111th Cong. (Nov. 19, 2009). 355 In July, Al Franken won Minnesota’s contested election. See Monica Davey & Carl Hulse, Minnesota Court Rules Democrat Won Senate Seat, N.Y. TIMES, July 1, 2009, at A1. Earlier that year, Senator Arlen Specter had switched from the Republican to the Democratic Party. See Carl Hulse & Adam Nagourney, Specter Switches Parties; More Heft for Democrats, N.Y. TIMES, Apr. 29, 2009, at A1. 356 For example, Joe Lieberman insisted on rejection of the “public option”—a government health insurance agency that would compete with private insurers. See Gerald F. Seib, Lieberman Digs In on Public Option, WALL ST. J., Nov. 24, 2009, at A2. Another holdout, Ben Nelson, obtained several amendments, including one that gave States power to refuse to cover abortion within their own Exchanges. See BLACKMAN, supra note 344, at 54. 357 See supra notes 337–41 and accompanying text. The addition of this federalism-based provision was indispensable to the Act’s passage. See Jonathan H. Adler & Michael F. Cannon, King v. Burwell and the Triumph of Selective Contextualism, 2015 CATO SUP. CT. REV. 35, 39–40; James F. Blumstein, Mistaken Paradigms and Interpreting Dreams: Some Reflections on King v. Burwell, 2015 CATO SUP. CT. REV. 79, 81, 84; see also Gluck, supra note 51, at 69 (noting that “states’ rights” advocates assumed that even Republican states would establish Exchanges to prevent a total federal takeover); id. at 76–78 (contending that the Senate bill merged two committee drafts, which created confusion as to whether taxpayers in States that failed to establish Exchanges would receive the tax credit). 358 See “On Passage of the Bill (H.R. 3590 as Amended): Roll Call Vote No. 396” (Dec. 24, 2009), http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress= 111&session=1&vote=00396 (cataloging party-line vote); see also BLACKMAN, supra note 344, at 59. 190 GEORGIA LAW REVIEW [Vol. 51:121

Democrat.359 Brown opposed Obamacare, and his election in a liberal state highlighted the lack of national majority support for the law.360 Nonetheless, Obama renewed his efforts.361 House Democrats, however, objected that they were being forced to scrap their bill (the AHCAA) and accept the Senate’s ACA, because any House amendments to the ACA would require Senate approval—a remote prospect if the Republicans filibustered.362 With no better option, House Democrats passed the Senate bill with the proviso that it be amended by a new bill, the Health Care and Education Reconciliation Act (HCERA).363 The HCERA could be enacted through the reconciliation process, a special procedure for budget changes that was not subject to a filibuster.364 The House made its desired adjustments.365 On March 21, it passed the Senate bill 219-212 (with all Republicans and thirty-four Democrats voting no), and Obama signed it.366 A few days later, the House bill (HCERA) was rushed through the Senate with little debate.367 The frantic one-month push meant that federal legislators could not carefully review this statute. Indeed, House Speaker Nancy Pelosi conceded that “we have to pass the bill so that you can find out what’s in it.”368 More notoriously, economist Jonathan Gruber,

359 See Michael Cooper, G.O.P. Senate Victory Stuns Democrats, N.Y. TIMES, Jan. 19, 2010, at A1. 360 See Karl Vick, Voters’ Angst Shakes Up Mass. Senate Race: Health Care Fears Help Republicans Raise a Fight for Kennedy’s Seat, WASH. POST, Jan. 17. 2010, at A3; BLACKMAN, supra note 344, at 61. 361 See Sheryl Gay Stolberg & David M. Herszenhorn, Obama Lays Out His Health Plan, N.Y. TIMES, Feb. 23, 2010, at A1. 362 See BRILL, supra note 343, at 188, 193; Adler & Cannon, supra note 357, at 38. 363 See BRILL, supra note 343, at 188–89; Gluck, supra note 51, at 78–79. 364 See BRILL, supra note 343, at 188–89; Gluck, supra note 51, at 79. 365 See generally H.R. REP. NO. 111-458 (2010) (describing the HCERA). The House also needed the votes of a handful of Democrats who opposed the Senate bill because it allowed abortion funding. See Alec MacGillis, Health Bill’s Backers Walk a Tightrope on Abortion, WASH. POST, Mar. 5, 2010, at A1. Obama satisfied their concerns by issuing Executive Order Number 13535 on March 24, 2010. 366 Final Vote Results for Roll Call 165, 111th Cong., Roll Call Vote No. 165 – On Motion to Concur in Senate Amendments, U.S. House, Vote Date March 21, 2010; see also BRILL, supra note 343, at 193. 367 U.S. Senate Roll Call Votes, 111th Cong. – 2d Sess., Roll Call Vote No. 105 – On Passage of the Bill (H.R. 4872 as amended), U.S. SENATE, Vote Date March 25, 2010; Final Vote Results for Roll Call 194, 111th Cong., Roll Call Vote No. 194 – On Motion to Concur in Senate Amendments (Reconciliation Act of 2010), U.S. House, Vote Date March 25, 2010. 368 See Jonathan Capehart, Pelosi Defends Her Infamous Health Care Remark, WASH. POST: POSTPARTIAN BLOG (June 20, 2012), https://www.washingtonpost.com/blogs/post-partisan/pos

2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 191 one of Obamacare’s architects, confessed in 2014 that the “bill was written in a tortured way” because this “[l]ack of transparency [was] a huge political advantage” given “the stupidity of the American voter.”369 He admitted that the ACA would not have passed if Congress had “made explicit that healthy people pay in and sick people get money . . . .”370 Furthermore, the obfuscation ensured that the Congressional Budget Office “did not score the [individual] mandate as taxes.”371 Similarly, Gruber acknowledged that, contrary to the assurances of Obamacare’s supporters, it would increase costs.372 Yet Professor Gruber is mistaken in claiming that the Democrats’ verbal legerdemain tricked the gullible public into supporting the ACA. In fact, polls consistently showed that the majority of Americans opposed Obamacare, and in the first election after its passage—seen as a referendum on the law—they voted to restore a Republican majority in the House and to reduce the Democrats’ margin in the Senate.373 The ACA’s length, complexity, hasty drafting, and partisan slant created confusion and anger that led to litigation. The IM and tax-credit provisions emerged as the main targets.

C. NATIONAL FEDERATION AND THE INDIVIDUAL MANDATE

National Federation’s critical holding—that the IM could be sustained under the Constitution’s Taxing Clause—depended upon the Court’s prior statutory interpretation of the IM “penalty” as a “tax.”374 This counterintuitive construction became necessary

t/Pelosi-defends-her-infamous-health-care-remark/2012/06/20/gJQAqch6qV_blog.html?utm_te rm=.4373b8f5342. 369 See Charles Krauthammer, The Gruber Confession, WASH. POST, Nov. 14, 2014, at A21. 370 Id. 371 Id. 372 See Jake Tapper, Obamacare Architect Discussed Misleading Public in 4th Newly Uncovered Video, CNN POLITICS (Nov. 13, 2014), http://www.cnn.com/2014/11/13/politics/tap er-gruber/. 373 See Paul Steinhauser, CNN Poll: Health Care Law Supports Drops to All-Time Low, CNN.COM POLITICALTRACKER (Dec. 23, 2013), http://politicalticker.blogs.com/cnn.com/2013/ 12/23/cnn-poll-health-care-law-support-drops-to-all-time-low/. 374 See Nat’l Fed’n of Ind. Bus. v. Sebelius, 132 S. Ct. 2566, 2593–2601 (2012) (Roberts, C.J.); accord id. at 2609, 2629 (Ginsburg, J., concurring in part, dissenting in part). 192 GEORGIA LAW REVIEW [Vol. 51:121 because of the Court’s threshold ruling that the IM exceeded Congress’s Article I power to regulate interstate commerce.375 1. The Commerce Clause. All nine Justices agreed on two points. First, Congress had enacted the IM as an exercise of its Commerce Clause power.376 Second, longstanding precedent required upholding a federal law if Congress could have had a rational basis for determining that the economic activity regulated, considered in the aggregate nationwide, “substantially affected” interstate commerce.377 The Court split, however, on how to apply these standards. Chief Justice Roberts joined his four fellow Republicans (Scalia, Kennedy, Thomas, and Alito) in concluding that Congress could regulate only existing interstate commercial “activity”—not order citizens who were not engaged in such activity to purchase an unwanted product.378 Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan, dissented on the ground that the ACA governs economic activities (health care and insurance) that, in the aggregate, substantially affect interstate commerce.379 I believe that the majority captured the Commerce Clause’s original

375 See id. at 2585–93 (Roberts, C.J.) (citing U.S. CONST. art. I, § 8, cls. 3, 18); id. at 2643– 50 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting) (agreeing with the Chief Justice that the Commerce Clause did not authorize the IM). For a detailed analysis of this holding, see Robert J. Pushaw, Jr. & Grant S. Nelson, The Likely Impact of National Federation on Commerce Clause Jurisprudence, 40 PEPP. L. REV. 975 (2013). 376 See id. at 2578–79, 2585–93 (Roberts, C.J.); accord id. at 2643–51, 2655 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting); id. at 2609–28 (Ginsburg, J., concurring in part, dissenting in part). 377 See id. at 2578–79, 2585–88 (Roberts, C.J.); id. at 2642–44 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting); id. at 2609, 2616–17 (Ginsburg, J., concurring in part, dissenting in part). 378 See id. at 2585–93 (Roberts, C.J.); accord id. at 2643–50 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). Moreover, Congress’s power to make “Necessary and Proper” laws merely authorized those that were “derivative of” and “incidental to” another Article I power (like the Commerce Clause), not to seize new “substantive” powers (such as by imposing the IM). See id. at 2591–93 (Roberts, C.J.); id. at 2646 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). 379 Id. at 2609–28 (Ginsburg, J., concurring in part, dissenting in part). She set forth three main arguments. First, health insurance had a multibillion dollar impact on American commerce. Id. at 2612–15. Second, the Commerce Clause did not make an economically dubious distinction between “activity” and “inactivity.” Id. at 2621–23. Third, even if the IM did reach noncommercial subjects, the Necessary and Proper Clause enabled Congress to decide that the IM was “ ‘an essential part of a larger regulation of economic activity.’ ” Id. at 2625–27. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 193 meaning, whereas the dissent provided the better reading of precedent.380 For present purposes, however, the critical point is that the Court rejected Congress’s explicit assertion that the IM was valid as an exercise of the Commerce Power.381 As such, the IM should have been struck down, and the entire ACA would have collapsed because it could not function properly without the IM. Chief Justice Roberts initially accepted this result, but flipped at the eleventh hour to join the four liberals in concluding that Congress implicitly might have thought the IM regulatory “penalty” was also a “tax” enacted pursuant to the Taxing Power.382 2. The IM as a “Tax.” The majority and dissenting opinions are quite technical. They can be better understood by providing some background on the Taxing Clause. a. The Taxing Power. The Articles of Confederation relied upon States to comply voluntarily with Congress’s requisition requests, resulting in collective action problems that fiscally ruined the national government.383 By contrast, the Constitution authorized Congress “[t]o lay and collect Taxes, Duties, Imposts, and Excises”384 against private parties directly.385 The Taxing Clause grants only power to raise revenue, not to regulate (unlike the Commerce Clause).386 Nonetheless, taxes often both produce revenue and further a regulatory goal, such as protecting American businesses.387 Since 1937, the Court has

380 For detailed explanations of this point, see Robert J. Pushaw, Jr., The Paradox of the Obamacare Decision: How Can the Federal Government Have Limited Unlimited Power?, 65 FLA. L. REV. 1993, 1994–96, 2000–18 (2013) [hereinafter Pushaw, Paradox]; Robert J. Pushaw, Jr., Obamacare and the Original Meaning of the Commerce Clause: Identifying Historical Limits on Congressional Powers, 2012 U. ILL. L. REV. 1703, 1747–52 [hereinafter Pushaw, Obamacare]. 381 See supra note 378 and accompanying text. 382 See Nat’l Fed’n, 132 S. Ct. at 2593–2601 (Roberts, C.J.); accord id. at 2629 (Ginsburg, J., concurring in part, dissenting in part); see also Pushaw, Paradox, supra note 380, at 1994–2000, 2045–53 (describing Roberts’s about face and its possible causes). 383 For analyses of how the Constitution improved upon the Articles by ensuring that the federal government could raise sufficient revenue, see Nelson & Pushaw, supra note 144, at 22–25, 34; Robert D. Cooter & Neil S. Siegel, Not the Power to Destroy: An Effects Theory of the Tax Power, 98 VA. L. REV. 1195, 1200–04 (2012). 384 See U.S. CONST. art. I, § 8, cl. 1. 385 See THE FEDERALIST NO. 45, at 313–14 (James Madison) (Jacob E. Cooke ed., 1961). 386 See Bailey v. Drexel Furniture Co., 259 U.S. 20, 36–37 (1922). 387 See Nelson & Pushaw, supra note 144, at 22–25, 34, 50–51; Cooter & Siegel, supra note 383, at 1200–10. 194 GEORGIA LAW REVIEW [Vol. 51:121 invariably upheld tax laws as long as they generated revenue, even if they also had a regulatory purpose or effect.388 Yet one outer limit on Congress remains. A statutory provision referred to as a “tax” may be invalidated if it is actually a “penalty”—a coercive monetary punishment for violating a statute designed to promote a regulatory objective. The landmark case, Bailey v. Drexel Furniture Co.,389 held that a “so-called tax” on employers who used child labor was really a “penalty.”390 Indeed, the Court had recently struck down Congress’s attempt to impose, as a regulation of interstate commerce, a “penalty” for violating a statutory prohibition against the interstate transportation of goods made by children.391 The Court refused to permit Congress to pass the same law as a “tax.”392 This relabeling did not change the exaction’s true nature as a “penalty,” as evidenced by its purpose of regulating a specified course of conduct by prohibiting departures from it; its imposition of a monetary punishment for violating this law; its relatively large dollar amount; its scienter requirement (i.e., employers had to know that a worker was underage); and its enforcement by the Department of Labor and not merely the IRS.393 Drexel Furniture has remained in force.394 Overall, federal tax laws are routinely sustained, as long as they raise revenue. The lone exception is a statutory “penalty”

388 See, e.g., United States v. Kahriger, 345 U.S. 22, 25–31 (1953) (allowing a $50 annual federal tax on those engaged in the gambling industry, even though that amount was low and the statute had the regulatory impact of discouraging gambling); see also id. at 28 (advising disgruntled citizens that any remedy “is in the hands of Congress, not the courts”). This acknowledgment of the political nature of taxes helps explain why no law has been struck down as exceeding the Taxing Power since United States v. Butler, 297 U.S. 1 (1936). 389 259 U.S. 20 (1922). 390 Id. at 34–44. 391 Id. at 36, 39 (citing Hammer v. Dagenhart, 247 U.S. 251, 271–72 (1918)), which concluded that Article I permitted Congress to regulate only interstate “commerce” in goods (such as their sale), not their prior production. The Court overruled Hammer in NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 34–40 (1937). Nonetheless, the Court has continued to follow Drexel Furniture, which concerned Congress’s distinct power to tax. See infra note 394 and accompanying text. 392 Drexel Furniture, 259 U.S. at 36–37, 39–40. 393 See id. at 36–38, 41–42. 394 See Dep’t of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 779–83 (1994) (treating a purported “tax” as a “penalty” because it was actually intended to regulate behavior through punishment). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 195 that the government claims is a “tax.” The IM charge seemingly fell within that exception. b. National Federation’s Tax Analysis. The ACA spawned many lawsuits. Every lower federal court held that the IM exaction could not be sustained as an Article I “tax” because (1) the ACA’s text always deemed it a “penalty”; (2) Congress repeatedly affirmed this fact and denied that the IM was a tax; and (3) case law required characterizing this measure as a “penalty.”395 Surprisingly, however, Chief Justice Roberts wrote an opinion joined by the four liberal Justices holding that the IM “penalty” could be construed as a “tax.”396 This decision was particularly puzzling in view of the Court’s unanimous threshold jurisdictional ruling that the Anti-Injunction Act (AIA), which bars federal courts from enjoining “the assessment or collection of any tax,”397 did not apply because Congress had called the IM charge a “penalty,” not a “tax.”398 The majority asserted that, although this “penalty” reference resolved the statutory question of whether the AIA extended to Obamacare, this usage did not settle the issue of whether the IM could be interpreted as an exercise of Congress’s constitutional power to tax.399 i. The Majority Opinion. The Chief Justice acknowledged that the most “natural” interpretation of the IM is that it requires uninsured Americans to purchase health insurance—and imposes a “penalty” on those who do not—as part of a comprehensive regulation of interstate commerce.400 But he invoked the canon of construing statutes to avoid constitutional issues whenever “fairly possible” and concluded that the IM language could plausibly be read as imposing a tax on those who do not buy insurance—and

395 See, e.g., Florida v. U.S. Dep’t of Health & Human Servs., 648 F.3d 1235, 1313–20 (11th Cir. 2011) (articulating this rationale and observing that other federal courts had unanimously reached the same conclusion). 396 See Nat’l Fed’n, 132 S. Ct. at 2566, 2593–2600 (Roberts, C.J.); accord id. at 2609 (Ginsburg, J., concurring in part, and dissenting in part) (joining the Chief Justice’s opinion on the tax issue without any elaboration). 397 26 U.S.C. § 7421(a). 398 Nat’l Fed’n, 132 S. Ct. at 2582–84 (Roberts, C.J.); accord id. at 2609 (Ginsburg, J., concurring in part, and dissenting in part); accord id. at 2655–56 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). 399 See id. at 2594, 2597–98 (Roberts, C.J.). 400 Id. at 2593–94. 196 GEORGIA LAW REVIEW [Vol. 51:121 therefore within the Taxing Power.401 The majority found this alternative interpretation to be reasonable because the IM “penalty” was assessed and collected by the IRS and “produces at least some revenue.”402 Furthermore, the Court declared that precedent did not require it to honor Congress’s own description of the IM exaction as a “penalty” rather than a “tax.”403 For instance, Drexel Furniture held that a charge which Congress had labeled a “tax” was not validly enacted under the Taxing Clause but was actually a regulatory “penalty.”404 Conversely, the License Tax Cases405 ruled that a statutory “license” fee to sell liquor was a legitimate exercise of the Taxing Power.406 Citing this case law, the Court took a “functional” approach to the ACA based on three items mentioned in Drexel Furniture, which indicated that the IM measure could be characterized as a “tax.”407 First, the monetary amount was modest—usually less than the price of insurance.408 Second, the IM did not include a scienter requirement, unlike other legislation that set forth regulatory penalties.409 Third, the IRS enforced this statute through its ordinary collection procedures.410 Moreover, Chief Justice Roberts observed that a “penalty” punished an illegal act, whereas Congress did not consider the failure to purchase insurance to be unlawful conduct warranting a sanction (as contrasted with a small payment to the IRS).411 Consequently, Congress’s choice of the word “penalty” in the IM did not preclude interpreting the exaction as a “tax.”412 The majority’s creative reading, however, raised the further question of whether this “tax” comported with Article I’s command that “[n]o Capitation, or other direct, Tax shall be laid, unless in

401 Id. at 2593–94, 2600–01. 402 Id. at 2594 (citing United States v. Kahriger, 345 U.S. 22, 28 (1953)). 403 See id. at 2594–95. 404 See id. (citing Bailey v. Drexel Furniture Co., 259 U.S. 20, 38 (1922)). 405 72 U.S. (5 Wall.) 462, 471 (1866). 406 Nat’l Fed’n, 132 S. Ct. at 2595 (Roberts, C.J.). 407 Id. 408 See id. at 2595–96. 409 See id. 410 See id. at 2596. 411 See id. at 2596–97. 412 Id. at 2597–2600. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 197

Proportion to the Census or Enumeration herein before directed to be taken.”413 Chief Justice Roberts tersely asserted that the IM was not a “direct tax” because it was neither a “head” tax imposed on everyone nor a tax assessed against property.414 ii. A Critique of the Court’s Decision. The majority’s opinion that the IM “penalty” is a “tax” cannot be justified under a fair application of any general approach to statutory interpretation—whether based on text, intent, purpose, precedent, or a pragmatic weighing of these factors—or by resort to the specific canon of constitutional avoidance. Rather, the decision reflects raw political pragmatism. 1. Text. On its face, the IM “penalty” can reasonably be construed only one way: as a monetary punishment for violating the ACA’s mandate to buy health insurance, imposed as part of a comprehensive regulation under the Commerce Clause. Congress made this clear by invoking this Clause and providing that covered individuals “shall” obtain health insurance and that those who “fail[ ] to meet the requirement” will be assessed “a penalty.”415 In common parlance, a “penalty” is a punishment, typically a fine.416 Similarly, the legal definition of a “penalty” is precise and well- established: a coercive monetary punishment for violating a law enacted to achieve a regulatory goal.417 Nor is the specific “penalty” provision at issue an isolated or careless usage. On the contrary, the Act reinforces this plain meaning by referring to the IM exaction as a “penalty” eighteen times.418 By contrast, the IM is never designated as a “tax”—a word used by both lay people and lawyers to signify an enforced contribution to provide revenue for the government.419 Finally, the IM and related “penalty” are located in Title I of the ACA (its

413 Id. at 2598–99 (quoting U.S. CONST. art. I, § 9, cl. 4). 414 Id. at 2598–2600. Because the dissenters rejected the notion that the IM had been enacted as a tax, they did not have to “confront a difficult constitutional question: whether this is a direct tax.” Id. at 2655 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). 415 See ACA, 26 U.S.C. § 5000A, discussed supra note 336 and accompanying text. 416 See, e.g., Penalty, THE AMERICAN HERITAGE DICTIONARY 1337 (3d ed. 1992). 417 See, e.g., Penalty, BLACK’S LAW DICTIONARY 1313–14 (10th ed. 2014); see also Nat’l Fed’n, 132 S. Ct. at 2650, 2653 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting) (citing other sources). 418 See Nat’l Fed’n, 132 S. Ct. at 2653 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting) (citing these statutory provisions). 419 See id. at 2650, 2653. 198 GEORGIA LAW REVIEW [Vol. 51:121 operative core), rather than in Title IX (Revenue Provisions), where a tax would be found.420 2. Intent. Although specific legislative intent is often difficult to ascertain, in this case it is easy. Congress repeatedly declared that the IM included a monetary “penalty” for violation of a legal requirement (to buy insurance) that was enacted as part of a broad Commerce Clause regulation.421 Conversely, President Obama and his legislative supporters assured Americans that the IM was not a “tax.”422 In fact, the House and Senate discarded earlier versions of the ACA that had authorized the IM as a tax because of both the negative political fallout from raising taxes and doubts about Congress’s constitutional power to impose such a direct tax.423 3. Purpose. The ACA’s overarching aim was to reform the health insurance market by increasing affordability.424 To achieve that purpose, Congress required insurance companies to issue policies at the same price to all applicants—even if they were older or had a pre-existing medical condition and hence would likely generate medical expenses that would far exceed their premiums.425 Because this requirement would financially wreck insurance companies, Congress had to bring younger and healthier citizens into the pool.426 It did so by mandating that the uninsured buy a policy and, if they broke that law, pay a “penalty.”427 Thus, the IM’s purpose was to financially punish violations of the legal duty to purchase health insurance, as part of a larger scheme to increase access in this interstate market.428 These

420 Id. at 2655. 421 See id. at 2652, 2655 (citing the ACA and its legislative history). 422 See Randy E. Barnett, Commandeering the People: Why the Individual Health Insurance Mandate is Unconstitutional, 5 N.Y.U. J. L. & LIBERTY 581, 633 (2010). 423 See Affordable Health Care for America Act, H.R. 3962, 111th Cong., 1st Sess. § 501 (2009); America’s Healthy Future Act of 2009, S. 1796, 111th Cong., 1st Sess. § 1301 (2009); see also Nat’l Fed’n, 132 S. Ct. at 2655 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting) (emphasizing that Congress had abandoned previous bills that based the IM on the Taxing Power). 424 See supra notes 16, 330–32 and accompanying text. 425 See supra notes 16, 331–32 and accompanying text. 426 See supra notes 333–38 and accompanying text. 427 See supra notes 16, 336 and accompanying text. 428 See Nat’l Fed’n, 132 S. Ct. at 2650–55 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting) (citing 42 U.S.C. §§ 18091(2)(A), (C), (D) and (H) and 18091(3)). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 199 congressional goals could be furthered only by interpreting the IM charge as a “penalty.” 4. Precedent. Case law supports this reading of the IM. Most pertinently, before National Federation, the Court had never construed a statutory provision expressly imposing a “penalty” as a “tax.”429 Similarly, a government exaction had always been characterized as either a “penalty” or a “tax”; it cannot be both simultaneously.430 For example, a $200 “penalty” for speeding is not a “tax,” and a 5% sales “tax” is not a “penalty.” Therefore, because the Court unanimously found that the IM was a “penalty” designed to enforce a Commerce Clause regulation, five Justices could not then logically assert that it was also a “tax” under the Taxing Power.431 Likewise, the IM cannot be a “penalty” in the Anti-Injunction Act, but somehow become a “tax” authorized by the Taxing Power.432 Under established precedent, such contradictory assertions are not merely implausible but impossible, like saying water is dry. Furthermore, the relevant cases uniformly hold that, when a statute stipulates a “penalty” for an act or omission, such behavior is unlawful per se.433 Accordingly, because Congress had explicitly imposed a “penalty” for failing to purchase health insurance, such conduct was automatically unlawful—contrary to Chief Justice Roberts’s bald claim that it was not.434

429 See id. at 2651. 430 See id. at 2650–53 (supporting this proposition by citing numerous cases). 431 See id. at 2584–2601 (Roberts, C.J.) (making this inconsistent argument); but see id. at 2650–56 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting) (demonstrating that the Court had always treated “penalties” and “taxes” as mutually exclusive categories). 432 See id. at 2656 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). 433 See id. at 2652–53 (citing precedent). The dissenters stressed that the Court had “never . . . classified as a tax an exaction imposed for violation of the law . . . [or] described in the legislation itself as a penalty” and that some cases had treated as a tax a required payment for something other than an unlawful act, such as a “license” or “surcharge.” Id. at 2653. Most notably, Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922), noted that even though Congress did not “expressly declare that the employment within the mentioned ages is illegal,” it punished those who transgressed its written criteria for wrongdoing. 259 U.S. at 30. Hence, when Congress penalizes specified actions, they are inherently illegal, as had long been recognized. See, e.g., Powhatan Steamboat Co. v. Appomattox R.R., 65 U.S. (24 How.) 247, 252 (1860); KENT, supra note 107, at 436 (“If a statute inflicts a penalty for doing an act, the penalty implies a prohibition, and the thing is unlawful . . . .”). 434 See Nat’l Fed’n, 132 S. Ct. at 2595–97 (Roberts, C.J.). The Court thereby made the troubling suggestion that disobeying a clear statutory command is not illegal when doing so promotes a citizen’s economic self-interest. See Pushaw, Paradox, supra note 380, at 2032. 200 GEORGIA LAW REVIEW [Vol. 51:121

Faced with adverse precedent directly on point, he maintained that Drexel Furniture435 had established a “functional” test for distinguishing a “penalty” from a “tax,” with the latter designation appropriate when (1) the amount of the exaction was small; (2) Congress did not include a scienter requirement; and (3) the IRS enforced the law.436 The Chief Justice concluded that the IM satisfied all three factors and was therefore a “tax.”437 A correct application of Drexel Furniture, however, dictated the opposite holding. Two years before that case, the Court had ruled that Congress exceeded its Commerce Clause power by imposing a regulatory “penalty” on employers for violating its ban on the interstate shipment of goods made by children.438 Drexel Furniture rejected Congress’s attempt to evade this decision by enacting an identical law that relabeled the “penalty” a “tax” on employers who used child labor.439 The Court ruled that this “so- called tax” retained the essential qualities of a “penalty”—a monetary punishment for violating a statutory provision that regulated conduct by prohibiting it.440 To buttress this conclusion, the Court noted that the exaction should be viewed as a “penalty” because it was large, contained a scienter requirement (the employer had to knowingly use child labor), and was enforced by the Department of Labor in addition to the IRS.441 Whereas Drexel Furniture concerned whether a statutory “tax” was really a “penalty,” National Federation presented the converse issue: whether a congressionally designated “penalty” could be deemed a “tax.” In both cases, the Court had already determined that Congress lacked power under the Commerce Clause to impose a “penalty” to punish the violation of a regulatory law (the child labor ban and the failure to buy insurance). Unlike in Drexel Furniture, however, in National Federation the Court was not reviewing an attempt by Congress to re-pass the IM “penalty” as a

435 259 U.S. 20 (1922). 436 See Nat’l Fed’n, 132 S. Ct. at 2595–96 (Roberts, C.J.) (citing Drexel Furniture, 259 U.S. at 36–37). 437 See id. at 2596. 438 See Drexel Furniture, 259 U.S. at 36, 39; see also supra note 391 and accompanying text (discussing this background). 439 Drexel Furniture, 259 U.S. at 34–44. 440 Id. at 36–43. 441 Id. at 36–38, 41–42. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 201

“tax.” Rather, the Court itself effectively rewrote the IM this way. Nonetheless, as in Drexel Furniture, the purported “tax” was still a “penalty”—a prohibitory regulation, backed by a monetary exaction, to punish specified unlawful action. Chief Justice Roberts avoided this interpretation by downplaying Drexel Furniture’s context and central holding and instead claiming it set forth a flexible three-factor test.442 But those criteria were mentioned in Drexel Furniture simply to reinforce the Court’s core conclusion that the child labor “tax” was actually a “penalty” as that term had long been used.443 And, even assuming Drexel Furniture had eschewed this definition of “penalty” in favor of a discretionary weighing of three factors, they do not necessarily lead to the outcome in National Federation. First, Chief Justice Roberts noted that the IM penalty, like a tax, was relatively small.444 Nevertheless, Congress had determined that this amount was a “penalty” and thus sufficiently high to punish those who did not purchase insurance. The Court did not have the institutional competence to second-guess this judgment. Relatedly, the fact that the IM amount varied according to income did not mean it should be classified as a “tax,” because “penalties” also are often calibrated based upon ability to pay.445 Second, the majority emphasized that the IM did not have a scienter requirement (i.e., covered individuals did not have to know of their legal duty to buy insurance).446 The presence or absence of scienter, however, is not very helpful in figuring out whether an exaction is a “penalty” or a “tax.” For instance, Congress routinely imposes “penalties” without requiring proof of knowledge or intent.447 Third, the Chief Justice declared that the IM “penalty” could be viewed as a “tax” because it was enforced by the IRS.448 But this exaction was also enforced by the Departments of Health &

442 See Nat’l Fed’n, 132 S. Ct. at 2594–96. 443 See Drexel Furniture, 259 U.S. at 36–43. 444 See Nat’l Fed’n, 132 S. Ct. at 2595–96. 445 See id. at 2654 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). 446 Id. at 2596 (Roberts, C.J.). 447 See id. at 2654–55 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting) (citing examples). 448 Id. at 2594–95 (Roberts, C.J.). 202 GEORGIA LAW REVIEW [Vol. 51:121

Human Services and Veteran Affairs, thereby confirming that it was a “penalty”449—just as the purported “tax” in Drexel Furniture was deemed a “penalty” because it was administered not only by the IRS but also by the Labor Department.450 Similarly unconvincing was Roberts’s claim that the IM charge could be seen as a “tax” since it was collected by the IRS and produced revenue,451 because the IRS often enforces “penalties” that generate revenue, such as for filing income taxes late.452 Not surprisingly, the Court had previously ruled that IRS collection of “penalties” did not transform them into “taxes.”453 In short, the majority’s interpretation of the IM “penalty” as a “tax” was unprecedented. Chief Justice Roberts either ignored or imaginatively rewrote the applicable case law.454 5. The “Constitutional Avoidance” Canon. All of the Justices recognized the traditional rule that statutes should be read, if fairly possible, to avoid constitutional questions.455 Chief Justice Roberts conceded that the most “natural” construction of the IM provision was as a Commerce Clause regulatory “penalty,” but noted that this interpretation would require him to strike down the IM.456 He therefore concluded that it was also

449 See id. at 2654 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). 450 Drexel Furniture, 259 U.S. at 37. 451 Nat’l Fed’n, 132 S. Ct. at 2594 (Roberts, C.J.). 452 See 26 U.S.C. § 6651. 453 See Nat’l Fed’n, 132 S. Ct. at 2654 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting); Barnett, supra note 422, at 610–13. 454 A distinguished legal historian has demonstrated that the Court effectively abandoned the core principle of Drexel Furniture and its progeny: that a purported “tax” is actually a regulatory “penalty” if it imposes a monetary exaction, triggered by a deviation from a detailed course of conduct, that is sufficiently burdensome to alter behavior. See Barry Cushman, NFIB v. Sebelius and the Transformation of the Taxing Power, 89 NOTRE DAME L. REV. 133, 135–36, 142–53, 161–94, 197–98 (2013). He argues that Chief Justice Roberts’s multi-factor distinctions between the Child Labor Act and the ACA would not have been seen as constitutionally significant during the 1920s and 1930s, because reformers did not believe that rewriting the Act to remove the objectionable features identified in Drexel Furniture would have salvaged the statute’s constitutionality. Id. at 161–94, 197–98. Rather, activists unsuccessfully tried to amend the Constitution to authorize Congress to enact child labor legislation. Id. at 136–37, 194–98. 455 See Nat’l Fed’n, 132 S. Ct. at 2593–94 (Roberts, C.J.); id. at 2609 (Ginsburg, J., concurring in part, and dissenting in part); id. at 2651 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). 456 Id. at 2593–94 (Roberts, C.J.). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 203 reasonable to view the IM exaction as a “tax.”457 Conversely, the dissenting Justices persuasively argued that the IM “penalty” could plausibly be read only as a penalty.458 Moreover, and ironically, the majority’s fanciful interpretation of the IM “penalty” as a “tax” did not avoid constitutional problems because it forced the Court to decide the novel issue of whether Article I authorized Congress to levy such a tax.459 Logically, the IM charge would seem to be a “direct” tax because it did not fall within any other taxation category listed in the Constitution (duties, imposts, excises, or income), and direct taxes must be apportioned among the States based upon their population—but the IM was not.460 Chief Justice Roberts dodged this seemingly inescapable conclusion with the ipse dixit that the IM was not a “direct tax.”461 Likewise, he simply ignored that the Taxing Clause has never been understood as allowing Congress to tax the failure to purchase a product.462 Finally, he did not mention that political accountability under the Constitution should have obligated the Court to effectuate Congress’s express assurance that the IM was not a “tax,” because the essential check on such power is the ability of voters to determine whether or not they favor tax increases for specific programs.463 In National Federation, then, a majority of Justices invoked the canon of constitutional avoidance selectively. They deployed this rule to justify construing the IM “penalty” as a “tax,” but ignored it by unnecessarily deciding the Taxing Clause question. Furthermore, their treatment of Congress’s power to tax was far

457 See id. at 2593–94, 2600–01; see also Kareem Crayton & Terry Smith, Unteachable: Shelby County, Canonical Apostasies, and A Way Forward for the Voting Rights Act, 67 SMU L. REV. 3, 3–9, 49 (2014) (contrasting Roberts’s “functionalist” approach—invoking the avoidance canon and the ACA’s overall objective to uphold the IM and thus save the statute—with his strict textualism in a recent Voting Rights Act case). 458 See Nat’l Fed’n, 132 S. Ct. at 2655 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). 459 See id. at 2654. 460 See Glenn H. Reynolds & Brannon P. Denning, National Federation of Independent Businesses v. Sebelius: Five Takes, 40 HASTINGS CONST. L.Q. 807, 821–22 (2013); Erik M. Jensen, The Individual Mandate and the Taxing Power, 134 TAX NOTES 97, 110–20 (2012). 461 See Nat’l Fed’n, 132 S. Ct. at 2598–99 (Roberts, C.J.). 462 See Pushaw, Paradox, supra note 380, at 2029–30. 463 See Nat’l Fed’n, 132 S. Ct. at 2655 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting); Barnett, supra note 422, at 613–14, 633. 204 GEORGIA LAW REVIEW [Vol. 51:121 too cursory. In short, the Court did not seriously engage the arguments that the IM exaction was not a “tax” under either the ACA or the Constitution. 6. Pragmatism. Like the canon of constitutional avoidance, pragmatism should come into play only when statutory materials (text, intent, purpose, and governing precedent) conflict and different reasonable interpretations are possible.464 In that situation, a judge must weigh one factor (such as purpose) more heavily than another (such as precedent) to choose a construction that will produce the best practical consequences, particularly by promoting the policy objectives of the enacting Congress.465 This kind of pragmatism should be contrasted with simply disregarding a statute’s clear meaning to reach a preferred result.466 Such raw pragmatism likely occurred in National Federation, because the Court’s opinion makes little sense under any traditional approach to statutory interpretation. Obamacare’s text, the IM’s underlying intent, Congress’s overall purpose, and precedent construing similar language all compel the conclusion that the IM imposed a “penalty” to punish the violation of a regulatory law enacted under the Commerce Clause, not a “tax.” Yet five Justices held to the contrary, seemingly driven by the practical imperative to save the ACA. They had different reasons for desiring this outcome, however. The four Democratic Justices shared Obama’s political, ideological, and policy vision about health insurance reform. Chief Justice Roberts did not, but he apparently made a different political calculus: If five Republican Justices invalidated the signature legislative accomplishment of a Democratic President, they would be subject to blistering attacks by Democrats in government, the media, and academia—all of whom had already warned the Court that invalidating Obamacare would provoke outrage.467 The Chief Justice also likely thought that Americans would perceive the decision as nonpartisan (since it was contrary to his political views) and as an act of judicial

464 See supra notes 3–6, 204–05, 220 and accompanying text. 465 See supra notes 220–23 and accompanying text. 466 See supra notes 7, 233 and accompanying text. 467 See John C. Eastman, Hidden Gems in the Historical 2011–2012 Term, and Beyond, 7 CHARLESTON L. REV. 1, 16–22 (2012). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 205 restraint that would leave the ACA’s fate to the voters.468 Protecting the Court’s reputation as an impartial legal institution among the general public took priority over writing an opinion that would be persuasive to lawyers.469 This tradeoff assumed, however, that Americans would believe politics did not significantly influence the decision. Unfortunately, polls showed the opposite,470 at least in part because Roberts’s vote switch became public and was seen as politically motivated.471 In any event, it is bizarre to attempt to preserve the Court’s reputation as a neutral legal arbiter by twisting the law to achieve political goals.472 3. The Medicaid Expansion and the Spending Power. A final issue concerned the ACA section requiring States to either provide health care for the millions of Americans whose income falls below 133% of the poverty line or lose all of their existing federal Medicaid funding (not merely the new money earmarked for Obamacare).473 Chief Justice Roberts, joined by Justices Breyer and Kagan as well as the four conservatives, held that Congress

468 Several prominent professors articulated this rationale. See Pushaw, Paradox, supra note 380, at 1997 n.24 (citing Noah Feldman, Gillian E. Metzger, Stephen B. Presser, and David Cole). 469 Even some scholars who agreed with the result acknowledged that Chief Justice Roberts’s legal arguments were so transparently weak that he must have been motivated by political and institutional concerns. See, e.g., Gregory P. Magarian, Chief Justice Roberts’s Individual Mandate: The Lawless Medicine of NFIB v. Sebelius, 108 NW. U. L. REV. COLLOQUY 15, 31–35 (2013); see also Tonja Jacobi, Obamacare as a Window on Judicial Strategy, 80 TENN. L. REV. 763, 764–76 (2013) (arguing that Roberts creatively interpreted statutory and constitutional text, selectively applied canons, and manipulated precedent to achieve strategic goals, especially preserving the Court’s institutional legitimacy, guarding his personal reputation, and increasing judicial power under the guise of self-restraint). This conclusion is necessarily speculative; we cannot prove any Justice’s motives. Indeed, I have previously recognized that the Chief Justice might have actually convinced himself that his opinion was legally sound, not politically driven. See Pushaw, Paradox, supra note 380, at 1998–99, 2049–50. Roberts enjoyed a distinguished career as an appellate lawyer—a breed trained to cobble together a Court majority by crafting a centrist position, often based on technical legal analysis that features hairsplitting distinctions. Id. 470 See, e.g., Lydia Saad, Americans Issue Split Decision on Healthcare Ruling, GALLUP (June 29, 2012), http://www.gallup.com/poll/155447/Americans-Issue-Split-Decision-Health care-Ruling.aspx (noting that “[n]early two-thirds of Americans see politics as having a heavy hand in the ruling”). 471 See Reynolds & Denning, supra note 460, at 818–23. 472 I have elsewhere responded to scholars who have attempted to defend Chief Justice Roberts’s opinion that the IM “penalty” was a “tax.” See Pushaw, Paradox, supra note 380, at 2026–33. 473 Nat’l Fed’n, 132 S. Ct. at 2601–08 (analyzing ACA, 42 U.S.C. § 1396a(a)(10)(A)(i)(VIII)). 206 GEORGIA LAW REVIEW [Vol. 51:121 had overstepped its Article I power to spend “for the . . . general Welfare” by coercing the States to accept the Medicaid expansion, since no State could realistically choose to give up all its Medicaid funding.474 Turning to the remedy, the Chief Justice sided with the four Democratic Justices in allowing Congress to offer the States a fresh supply of money to encourage them to voluntarily comply with the new ACA conditions.475 By contrast, Justices Scalia, Kennedy, Thomas, and Alito argued that the Court, having determined that the Medicaid provision was unconstitutional, had to invalidate it in toto rather than rewrite it.476 Once again, the dissenting Justices were correct as a matter of statutory interpretation. Indeed, no one disputed the meaning of the relevant provision: States would forfeit all of their Medicaid funding unless they acceded to the new condition that they extend medical care to their impoverished residents. Rather, the sole question was whether this provision was constitutional. Having found that it was not, the majority had no license to amend the statute to say that States could receive extra Medicaid money if they followed the ACA condition, but could keep their existing Medicaid funds if they did not. The Court’s failure to enforce the Medicaid expansion provision according to its obvious meaning cannot be justified under ordinary norms of statutory construction. Rather, it was apparently driven by the Justices’ desire to salvage as much of Obamacare as possible. 4. Concluding Observations About National Federation. Congress relied upon the Commerce Clause to enact the IM “penalty” as a monetary punishment for violating its regulatory mandate to purchase health insurance.477 The Court could have upheld that provision as a valid regulation of interstate commerce by applying its established precedent.478 Once Chief Justice Roberts rejected that option, however, he was legally obliged to

474 See id. at 2601–08 (Roberts, C.J.); accord id. at 2656–67 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). 475 See id. at 2607–08 (Roberts, C.J.); accord id. at 2630–31, 2641–42 (Ginsburg, J., concurring in part, and dissenting in part). 476 See id. at 2666–68 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). 477 See supra notes 20–22, 375–76, 381, 400, 415, 421, 431, 456 and accompanying text. 478 See supra notes 377, 379–80 and accompanying text. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 207 invalidate the IM. Instead, he saved it by holding that the IM “penalty” was a “tax,” and the four liberal Justices went along. This conclusion did not reflect a plausible interpretation of the ACA and was therefore likely motivated by nonlegal considerations. The same critique applies to the Medicaid provision. Of course, Justices Scalia, Thomas, Alito, and Kennedy might be accused of construing the ACA to accomplish the opposite political goal—getting rid of Obamacare. Nonetheless, their opinion rested on a sound application of traditional rules of statutory interpretation. National Federation appeared to thwart the legal attack on the ACA. However, a new wave of litigation quickly followed.479

D. KING AND “EXCHANGES ESTABLISHED BY THE STATE”

King v. Burwell480 concerned ACA Section 36B, which gives a tax credit to any “applicable taxpayer”—one with an income between 133%–400% of the poverty level who purchases a health insurance policy on “an Exchange established by the State [under Section 18031].”481 In turn, Section 18031 provides that “[e]ach State shall . . . establish a . . . Health Benefit Exchange”—an entity that helps “qualified individuals” buy health insurance policies on a website that markets Obamacare-compliant plans.482 If a State does not establish an Exchange by January 1, 2014, a different ACA section (18041) directs the federal HHS to create and operate “such Exchange.”483 Unexpectedly, only sixteen States established Exchanges, but the IRS extended the tax credit to taxpayers who purchased insurance on any Exchange, whether “established by the State” (as

479 See Gluck, supra note 51, at 63–64, 68–71 (condemning conservatives’ attempt to use federal courts to “exploit” the wording of the tax-credit provision in the ACA to destroy Obamacare). 480 135 S. Ct. 2480 (2015). 481 26 U.S.C. § 36B(a)–(c). 482 42 U.S.C. § 18031(b)(1), (d)(1)–(4). 483 Id. § 18041(c). 208 GEORGIA LAW REVIEW [Vol. 51:121

Section 36B provides) or by HHS.484 King and others claimed that this regulation exceeded the IRS’s authority under the ACA.485 Chief Justice Roberts, joined by Justice Kennedy and the four Democratic appointees, held that the Act’s overall context, structure, and purpose indicated that Section 36B’s tax credits were available to those who bought insurance on any Exchange.486 Justice Scalia, joined by Justices Thomas and Alito, dissented on the ground that Section 36B explicitly limited the credit to taxpayers who purchased a policy on “an Exchange established by the State.”487 Both sides claimed to be applying textualism. Only the dissent actually did so, however, as the majority pragmatically determined that enforcing the clear semantic meaning of Section 36B would frustrate Congress’s overarching purpose: to make health insurance more accessible. To grasp this point, it is helpful to examine each component of statutory interpretation. 1. Textualism. Justice Scalia began by summarizing his longstanding textualist approach.488 In America’s constitutional democracy, courts are limited to the “judicial power” of expounding laws as enacted by Congress in the exercise of its Article I “legislative Powers.”489 Thus, the Justices’ role was to determine the meaning of the statutory provision at issue (Section 36B), read in light of the ACA’s entire text.490 If that meaning was plain, the Court had to enforce it—not speculate about what members of Congress might have intended or amend the statute to achieve a preferred policy result.491 Accordingly, “[a]ny effort to understand rather than to rewrite a law must accept and apply the

484 See 45 C.F.R. § 155.20; see also Adler & Cannon, supra note 357, at 45–47 (noting that the IRS changed its position and decided to include Federal Exchanges only after unexpectedly widespread State resistance to Obamacare had emerged). 485 King, 135 S. Ct. at 2487–88. Plaintiffs argued that they lived in a State with a Federal Exchange and thus were ineligible for the tax credit. Id. at 2487–88. Without the credit, the cost of buying insurance would be more than 8% of their income, which would exempt them from the IM (as they wished). Id. at 2487. The IRS regulation, however, granted them the tax credit, which would subject them to the mandate. Id. at 2487–88. 486 Id. at 2488–96. 487 Id. at 2496–2507 (Scalia, J., dissenting) (emphasis added). 488 See supra notes 1–2, 45–49, 183–97 and accompanying text. 489 See King, 135 S. Ct. at 2497, 2505 (Scalia, J., dissenting). 490 See id. at 2496–97, 2505. 491 See id. at 2497, 2500, 2505–07. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 209 presumption that lawmakers use words in their natural and ordinary signification.”492 Justice Scalia observed that the ordinary meaning of “a State” is “a State,” not “the Federal Government” or its agencies.493 Consequently, it was “obvious” that

under § 36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The [HHS] Secretary . . . is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under § 36B.494

Moreover, he stressed that the Act itself confirms this clear meaning by defining “State” as “each of the 50 States and the District of Columbia.”495 Justice Scalia found support for this conclusion throughout the statute.496 Most pertinently, Section 36B expressly cross- references Section 18031, which provides States with authority and funding to establish and operate their Exchanges, whereas a completely separate section (18041) deals with Federal Exchanges.497 Justice Scalia also noted that the ACA uses the phrase “Exchange established by the State” seven times in connection with the tax credits.498 By contrast, other parts of the Act employ different terminology such as “an Exchange” or “an Exchange established [by HHS].”499 Hence, Justice Scalia criticized the majority’s odd construction of Section 36B as modifying the normal meaning of “an Exchange established by the State” throughout the statute.500

492 Id. at 2497 (citing Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U.S. 1 (1878)). 493 Id. at 2496–97. 494 Id. at 2497. 495 Id. (citing 42 U.S.C. § 18024(d)). 496 Id. at 2498–2502, 2505. 497 Id. at 2498. 498 Id. at 2498–99, 2505 (citing statutory provisions). 499 Id. at 2498–99 (quoting relevant sections of the ACA). 500 For example, the ACA directs states to ensure that an “Exchange established by the State” uses a “secure electronic interface” to determine eligibility for various benefits

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He argued that this phrase, read in conjunction with the other relevant portions of Obamacare, could have no rational meaning or purpose other than to limit tax credits to those who had purchased insurance on “State Exchanges.”501 Interpreting this language to include Exchanges created by the Federal Government would leave the key limiting phrase “by the State” with no operative meaning at all (not merely a meaning that is redundant with another part of the law), contrary to the canon that every word in a statute should be given effect.502 Justice Scalia rejected the majority’s assertion that this canon (and others, such as the presumption of consistent usage) should be ignored because the ACA exhibits “inartful drafting” and “ ‘does not reflect the type of care and deliberation that one might expect of such significant legislation.’ ”503 He maintained that the Court could not legitimately judge the quality of Congress’s work and amend statutes deemed defective.504 Rather, the Court only had the “judicial power” to enforce the law as written.505 Congress could then exercise its “legislative power” to (1) continue the status quo, but enact new provisions to lessen any adverse economic consequences; (2) make tax credits available for every Exchange; (3) choose option (2), but give States new incentives to establish Exchanges; (4) do nothing; or (5) repeal the law.506 Justice Scalia declared that “[t]he Court’s insistence on making a choice that should be made by Congress both aggrandizes judicial power and encourages congressional lassitude.”507 Chief Justice Roberts acknowledged that “[i]f the statutory language is plain, we must enforce it according to its terms.”508 He

(including tax credits). Id. at 2499 (citing 42 U.S.C. § 1396w–3(b)(1)(D)). Thus, under the Court’s reading, the State would have to control eligibility determinations by the Federal Exchanges. Id. at 2499. The majority attempted to avoid this problem by limiting its interpretation of the phrase “established by the State” to tax credits. See id. at 2491 (Roberts, C.J.). Such a restriction, however, contradicted the majority’s assertion that it was construing the ACA according to its broader context and structure. See id. at 2491 (Scalia, J., dissenting). 501 Id. at 2496–98. 502 Id. at 2498. 503 Id. at 2506 (citing id. at 2492–93 (Roberts, C.J.)). 504 Id. at 2505–07 (Scalia, J., dissenting). 505 Id. at 2505–06. 506 Id. at 2506. 507 See id. 508 Id. at 2489 (Roberts, C.J.). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 211 also conceded that the dissent had set forth the most “natural” interpretation of Section 36B.509 Nonetheless, the Court had to decide whether statutory language was clear by reading specific provisions “ ‘in their context and with a view to their place in the overall statutory scheme.’ ”510 Chief Justice Roberts found that this larger context and plan suggested an ambiguity: “established by the State” could be read either as State Exchanges or as all Exchanges.511 He emphasized that, if a State did not create an Exchange under Section 18031, then Section 18041 instructs HHS to establish “such Exchange”—a phrase indicating that this Federal Exchange would be the same as the State Exchange, as both had equivalent requirements, functions, and purposes.512 They would differ fundamentally, however, if the billions in tax credits intended to help make insurance more affordable to “qualified individuals” (i.e., those whose incomes fell between 133%–400% of the poverty level) were available only on State Exchanges.513 In fact, there would be no “qualified individuals” in States with Federal Exchanges.514 Likewise, the Chief Justice highlighted that Section 36B allows the tax credit for any “applicable taxpayer”—defined as someone within the 133%–400% range who bought a policy on “an Exchange established by the State” (which could include the functionally similar HHS Exchanges).515 Justice Scalia decried the majority’s arguments as “interpretive jiggery-pokery,”516 for three reasons. First, “such” Exchange did not mean “the same” Exchange (i.e., State or Federal).517

509 See id. at 2489–90, 2495. 510 Id. at 2489 (citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)). 511 Id. at 2489–92. 512 Id. at 2489–90. 513 Id. at 2490–91. 514 See id.; see also id. at 2491–92 (stressing that several ACA provisions, such as those requiring all Exchanges to distribute tax-credit information to taxpayers and report tax- credit data to the IRS, would make little sense unless such credits were allowed on the Federal Exchanges). 515 See id. at 2494–95. 516 See id. at 2500 (Scalia, J., dissenting). 517 See id. at 2499–2500; see also Adler & Cannon, supra note 357, at 58–62 (demonstrating that the ACA’s provisions, read both individually and holistically, repeatedly and sharply distinguish State from Federal Exchanges). Moreover, the fact that

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Furthermore, even if that definition were plausible in general, it would be overridden by the specific terms in Section 36B— “established by the State.”518 Second, the ACA’s provisions about “qualified individuals” logically apply only to Exchanges that have such individuals (State Exchanges), not to those that have none (Federal Exchanges).519 Third, Section 36B meant that, in States with Federal Exchanges, an “applicable taxpayer” would be eligible for the tax credit, but its amount would be zero.520 Contrary to Chief Justice Roberts’s assertion that such a result would be strange,521 Congress often provides for tax credits in exactly that fashion.522 Justice Scalia accused the majority of abandoning normal rules of statutory interpretation and rewriting the Act to achieve the political goal of saving Obamacare.523 On balance, the dissenters’ textual argument was unassailable. Section 36B gives a tax credit to low-income taxpayers who buy a health insurance policy on “an Exchange established by the State [under Section 18031].”524 The meaning of “State” had never before been disputed: one of America’s fifty independent governments. The ACA confirms this self-evident meaning in its definition of “State.”525 And Congress removed any possible doubt by including two separate sections authorizing the establishment of Exchanges: one for the States (18031), the other for the Federal Government (18041). The majority attempted to avoid this straightforward reading by waving two red herrings. The first was that the statute as a the two Exchanges performed similar functions does mean they are treated the same for purposes of tax credit eligibility. Id. at 62. 518 See King, 135 S. Ct. at 2499–2500 (Scalia, J., dissenting). 519 See id. at 2501. 520 See id. 521 See id. (citing id. at 2495 (Roberts, C.J.). 522 See id. at 2501 (Scalia, J., dissenting). For example, Section 35 of the ACA initially makes all taxpayers eligible for a credit for health insurance costs, but later provides that the amount may be zero if the taxpayer’s State does not meet certain requirements. See id. (citing statute). Likewise, the Tax Code makes all Americans eligible for various tax credits (e.g., first-time home buyers and parents), but then elsewhere reduces that credit to nothing if the taxpayer’s income exceeds a certain level. Id. 523 Id. at 2497, 2505–07. 524 ACA, 26 U.S.C. § 36B(c)(2)(A)(i). 525 See ACA, 42 U.S.C. § 18024(d)). King reflects the Court’s disturbing trend of ignoring Congress’s own definition of terms, which until very recently had never occurred. See supra notes 271–75, 320–22, 327–28 and accompanying text. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 213 whole was shoddily drafted using unusual procedures.526 Although this is true, and Obamacare contains unclear words, “State” is not one of them. Rather, it has a single meaning that is universally understood. The second distraction was to invoke the “qualified individuals” language.527 This provision, however, determined who was eligible to buy insurance on an Exchange and had nothing to do with who could get a tax credit—a distinct issue governed by a separate provision, Section 36B.528 Put simply, the Court rewrote the ACA. Unfortunately, the Justices lack constitutional power to engage in such legislation. The only possible exception would be the rare case, such as a misprint, where enforcing language literally would lead to an absurd result.529 To illustrate, if an ACA provision referred to “hearth” insurance, a court could rectify that patent mistake by reading the word as “health.” But Chief Justice Roberts did not claim that such an error had occurred.530 Indeed, it strains credulity to believe that Congress mistakenly wrote “Exchange established by a State” over and over again and understood “State” to mean “the Federal Government.” Therefore, the Chief Justice blundered by agreeing with Justice Scalia that the Court had to enforce a statute’s plain meaning. A faithful application of textualism dictated the dissent’s interpretation of Section 36B.531 Rather, the majority should have been candid and admitted that they were adopting a pragmatic

526 See King, 135 S. Ct. at 2492–93 (Roberts, C.J.). 527 See id. at 2490–92. 528 See Blumstein, supra note 357, at 87–92 (making this point, and adding that (1) the ACA does not make tax subsidies available to all “qualified individuals” who purchase insurance, and (2) this language at most supports the inference that Congress assumed States would run the Exchanges); Adler & Cannon, supra note 357, at 55–58 (arguing that the ACA’s text and drafting history show that the “qualified individuals” provision served many purposes and actually reinforces—rather than casts doubt upon—the clear meaning of “established by the State” in Section 36B). 529 See King, 135 S. Ct. at 2504–05 (Scalia, J., dissenting); see also supra notes 78, 126, 189 and accompanying text. 530 Neither party argued that the disputed ACA provisions had resulted from incorrect drafting. Hence, the Court had no need to reconsider its recent extreme skepticism about allowing the assertion of “mistake,” which rested on the idea that Congress can amend its statutes to rectify any errors. See Gluck, supra note 51, at 67, 72–73, 101–05, 108. 531 See King, 135 S. Ct. at 2502–03 (Scalia, J., dissenting); see also Adler & Cannon, supra note 357, at 52–63 (maintaining that the Court invoked the ACA’s “context”—and selectively cited certain statutory provisions while ignoring others—to create, rather than resolve, an ambiguity in the text). 214 GEORGIA LAW REVIEW [Vol. 51:121 approach, whereby Section 36B’s clear textual meaning was outweighed by other factors, such as Congress’s overall purpose and practical considerations.532 2. Intent. Contemporaneous statements shed light on Congress’s intent behind Section 36B. At the time of the ACA’s enactment and early implementation, every government official who publicly commented—including congressional leaders, President Obama, and HHS Secretary Sebelius—emphasized that the Exchanges would be created and operated by the States.533 This consensus reflected two facts. First, ensuring such State control had been essential to Obamacare’s passage.534 Second, States that failed to set up an Exchange would inflict financial harm on their citizens. The ACA expressly grants a tax credit to low and moderate income taxpayers who purchase insurance on “an Exchange established by the State,” allocates funding to States to help them run Exchanges, and sets forth a distinct provision (Section 19041) that authorizes the Federal Government to create Exchanges but does not confer a tax credit.535 This wording indicates that Congress intended the credit as a subsidy to induce States to establish their own Exchanges.536 In 2012, Jonathan Gruber, one of the law’s architects, confirmed this intent:

[The ACA] says [that] if the states don’t provide them [i.e., Exchanges], the federal backstop will. The federal government has been sort of slow in putting out its backstop . . . [to] squeeze the states to do it. I think what’s important to remember politically . . . is if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. But your citizens still pay the taxes that support this bill. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states . . . I hope that’s a blatant enough political reality that states will get their act together and

532 The following sections will examine those other factors. 533 See Adler & Cannon, supra note 357, at 40 (citing statements). 534 See supra notes 356–58 and accompanying text. 535 See supra notes 16, 29–32, 337–41, 357 and accompanying text. 536 See King, 135 S. Ct. at 2505 (Scalia, J., dissenting); see also Adler & Cannon, supra note 357, at 37–43 (reinforcing this conclusion by citing contemporaneous evidence). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 215

realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it.537

However, when most States unexpectedly refused to create Exchanges as part of the broad backlash against Obamacare and the tax credit issue emerged as critical, Gruber claimed he had misspoken.538 Similarly, many Democratic members of Congress asserted that they had intended to provide this subsidy to enable Americans of modest means to buy insurance, regardless of the Exchange used539—even though no one had said so during the legislative process.540 Nonetheless, Chief Justice Roberts accepted this post hoc rationalization in concluding that Congress must have meant to grant the credit based on low income, not State of residence.541 Moreover, he maintained that Section 18041’s fallback provision showed that Congress had anticipated that some States would not establish Exchanges and did not indicate a desire to deprive their citizens of the credit.542 The majority’s holding does not logically derive from Section 36B, which confers a tax credit on taxpayers who (1) had an income between 133%–400% of the poverty level, and (2) purchased a health insurance policy on “an Exchange established by the State [under Section 19031].”543 The first condition obviously was designed to help poorer citizens buy insurance. The intent behind the second requirement was to give States a large monetary incentive to voluntarily create Exchanges, which was necessary because the Constitution prohibits Congress from compelling (as opposed to encouraging) States to participate in

537 Michael F. Cannon, ObamaCare Architect Jonathan Gruber: “If You’re a State and You Don’t Set Up an Exchange, That Means Your Citizens Don’t Get Their Tax Credits,” FORBES (July 25, 2014, 4:04 AM), http://www.forbes.com/sites/michaelcannon/2014/07/25/obamacar e-architect-jonathan-gruber-if-youre-a-state-and-you-don’t-set-up-an-exchange-that-means- your-citizens-don’t-get-their-tax-credits/#1ffbe685129c. 538 Id. 539 See Gluck, supra note 51, at 76 n.89 (citing sources). 540 See Adler & Cannon, supra note 357, at 47. 541 King, 135 S. Ct. at 2492–96. 542 Id. at 2494–96. 543 ACA, 26 U.S.C. § 36B(c)(2)(A)(i). 216 GEORGIA LAW REVIEW [Vol. 51:121 federal programs.544 As Congress had to offer States a genuine choice, it was possible (although it was assumed to be unlikely) that a few might decline the tax-credit inducement,545 which explains the inclusion of the Section 18041 Federal Exchange backup.546 The Court ignored the constitutional necessity for this fallback and eliminated Section 36B’s second requirement. Consequently, its interpretation must have rested not on Congress’s intent in enacting this provision, but rather on Obamacare’s broader objectives. 3. Purpose. Chief Justice Roberts asserted that statutory construction “demands a fair understanding of the legislative plan,”547 which hinged on enabling millions of Americans to procure medical insurance (and thus health care) more easily and inexpensively.548 That overarching purpose explains why the Court strained so mightily to find Section 36B ambiguous, which justified consideration of the ACA’s broader context and structure.549 According to the Chief Justice, Congress sought to expand health insurance coverage through four provisions designed to work together: (1) “guaranteed issue” of policies to all applicants and “community rating” to keep prices low; (2) the IM (unless buying insurance would consume more than eight percent of a taxpayer’s income); (3) tax credits for Americans with an income between 133%–400% of the poverty line, which would greatly decrease the number of people who would otherwise fall within the

544 See Blumstein, supra note 357, at 83–87, 93–94 (describing how Congress included the tax credits as a carrot in recognition of this “anti-commandeering” constitutional requirement). 545 See King, 135 S. Ct. at 2504 (Scalia, J., dissenting) (arguing that Section 19041’s provision requiring HHS to establish an Exchange if a State failed to create one does not show that “Congress expected the number of recalcitrant States to be particularly large”). 546 See Blumstein, supra note 357, at 84–87. Thus, Chief Justice Roberts erred in inferring that this backstop refuted plaintiffs’ argument that the Section 18031 tax-credit provision provided an incentive to States to establish Exchanges. Id. at 86–87. In doing so, the Court rewrote the ACA, which made States the gatekeepers in determining whether establishing Exchanges to give their citizens the tax subsidy was worth certain countervailing business burdens. Id. at 81, 84, 86, 93–94, 97–98, 100. 547 See King, 135 S. Ct. at 2496. 548 See supra notes 16, 330–42 and accompanying text. 549 King, 135 S. Ct. at 2492–96. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 217

“eight percent” IM exemption; and (4) Exchanges to facilitate the purchase of health insurance.550 The majority warned that reading Section 36B to restrict tax credits to State-established Exchanges would destabilize insurance markets in States with Federal Exchanges and likely create the economic “death spirals” that Congress wanted to avoid, for two reasons.551 First, one of the ACA’s major reforms (the tax credits) would not apply at all, and another (the IM) would be meaningless because millions of Americans would be exempt from the IM without the tax credit.552 Second, the other crucial reforms— guaranteed issue and community rating—are mandatory in every State, but can function effectively only when combined with the IM and tax credits.553 Hence, Congress must have thought the IM and tax credits would apply in every State, as it was “implausible” that Congress wished to create unstable insurance markets.554 In sum, the Court held that Obamacare’s context and structure supported the conclusion that Section 36B allows tax credits for insurance purchased on Federal Exchanges so that they could operate like their State counterparts:

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan . . . .555

Justice Scalia responded with four arguments. First, because Section 36B’s language was plain, other evidence should not have been consulted.556 Second, assuming such consideration were appropriate, a statute’s purpose is revealed primarily in its words,

550 Id. at 2485–87, 2492–94. 551 Id. at 2492–93. 552 Id. at 2493. 553 Id. at 2494. 554 Id. at 2493–94. 555 Id. at 2496. 556 See id. at 2502 (Scalia, J., dissenting). 218 GEORGIA LAW REVIEW [Vol. 51:121 and the guaranteed issue, community rating, IM, and tax provisions were each clear and could operate independently.557 Third, the majority’s prediction that insurance markets would be upset without the tax credit, even if true, “would show only that the statutory scheme contains a flaw . . . [not] that the statute means the opposite of what it says.”558 And this same defect appeared in two other sections of the original ACA: insurance programs in the Federal Territories and for long-term care, which featured guaranteed-issue and community-rating requirements but not subsidies or an IM.559 These provisions refuted the Court’s claim that it would be “implausible” to imagine that Congress would have risked destabilizing insurance markets (in States with Federal Exchanges) by imposing cost limits (such as guaranteed issue and community rating) without counterbalancing subsidies (like tax credits).560 Justice Scalia maintained that, if market problems in the Federal Exchanges arose, Congress—not the Court—had the power to address them, as Congress had done with the Territories and long-term care.561 Fourth, Congress did not have a single purpose in enacting the ACA.562 Rather, Congress had several different purposes, including to encourage States to establish Exchanges—which is why States had the first opportunity to do so and got extra federal funding to defray the attendant costs.563 Justice Scalia accused the Court of frustrating that federalism purpose by removing the States’ incentive to establish an Exchange, as their citizens would

557 See id. at 2503. 558 See id. 559 See id. at 2503–04. 560 See id. 561 See id. at 2503–05. Surprisingly, he did not mention another provision that supported his position: guaranteed issue of insurance for children, with no subsidies or IM. See Adler & Cannon, supra note 357, at 65 (citing ACA). Moreover, like Section 36B’s tax credit, many other parts of Obamacare condition insurance subsidies on State cooperation—with harsh consequences for failure to do so. For instance, a State’s refusal to accept the Medicaid expansion would result in the poorest of workers paying higher insurance costs and losing any tax credits. See id. at 65–66; see also id. at 65 (describing the ACA’s employer-coverage mandates and small business tax credits, which depended upon State participation). Obamacare is unique not in giving States a stark choice, but rather because so many States refused to play ball. See id. at 68, 75. 562 See King, 135 S. Ct. at 2504–06 (Scalia, J., dissenting). 563 See id. at 2504, 2506. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 219 now receive the tax credit on a Federal Exchange.564 He also pointed out that, if the Court were correct in speculating that the lack of credits in States that failed to create Exchanges would have dire economic consequences, States would respond by setting up Exchanges.565 Thus, implementing Section 36B as written would serve both its purposes: providing a tax subsidy to low-income Americans and encouraging States to establish Exchanges.566 Justice Scalia’s final point illustrates that “purpose” can be defined at different levels of generality.567 He focused on the particular purpose (what I have called “specific intent”) behind Section 36B, whereas the majority emphasized the ACA’s overall objective: maximizing access to affordable health insurance. In doing so, the Court revived its long-abandoned notion—anathema to textualists—that a statute’s perceived animating “spirit” can override its clear language.568 4. Precedent. In King, case law was unhelpful. Not surprisingly, the Court had never before been asked to resolve a dispute over the meaning of the word “State.” More generally, the majority and dissent cited the same precedent on statutory interpretation, but disagreed on its application. For example, both Roberts and Scalia invoked decisions proclaiming that judges must enforce the semantic meaning of a statute’s text, as determined by reading the provision at issue in light of the law’s larger context.569 The dissent concluded that

564 See id. at 2504. 565 See id.; see also Blumstein, supra note 357, at 92–97, 107–08 (rejecting the majority’s post hoc rationalization that because application of a clear statutory provision (limiting tax subsidies to State Exchanges) might lead to a perceived bad result, Congress could not have meant what it said, and further arguing that any adverse effects should be addressed through the political process); id. at 104–07 (noting that King involved a motion to dismiss, which must be decided on the pleadings alone—not based on consideration of extrinsic evidence such as possible adverse economic consequences). 566 See King, 135 S. Ct. at 2504 (Scalia, J., dissenting). 567 See supra notes 44, 181–82 and accompanying text. 568 See supra notes 134–41 and accompanying text. The Court invoked the ACA’s “context” and “structure” to create a narrative that Congress envisioned a single “purpose” which each statutory provision served, thereby rationalizing judicial disregard of the obvious meaning of the controlling statutory words (“established by the State”), which in turn violated separation of powers by transferring legislative power from Congress to the Court and executive agencies. See Blumstein, supra note 357, at 79–83, 89–99, 104–09. 569 See King, 135 S. Ct. at 2489–90, 2492–93, 2495–96 (Roberts, C.J.) (citing several cases for this proposition); id. at 2497, 2502–05 (Scalia, J., dissenting) (same). 220 GEORGIA LAW REVIEW [Vol. 51:121

Section 36B had a clear meaning that was reinforced by the ACA as a whole, whereas the majority held that this seemingly straightforward provision was ambiguous once the Act’s broader context was taken into account.570 Similarly unilluminating were cases discussing canons of construction. For instance, Justice Scalia cited the hoary judicial “rule against surplusage”—every word in a statute should be given effect—and argued that the majority had robbed the limiting phrase “established by the State” of any significance.571 Chief Justice Roberts, however, quoted opinions cautioning that this canon “was not absolute” and could be disregarded in certain circumstances.572 Another illustration of the malleability of cases setting forth “rules” of interpretation was the Court’s treatment of Chevron, which requires judicial deference to an agency’s reasonable construction of an ambiguous statute.573 Chief Justice Roberts asserted that Chevron assumed Congress had delegated such interpretive questions to the agency, but that Obamacare did not make such a delegation expressly (as would be expected given the significance of the tax credits) or implicitly (because the IRS does not craft health policy).574 Therefore, the Court said that it had to independently determine the meaning of Section 36B.575 At first glance, declining to apply Chevron seems like a technicality, as the majority ended up reading Section 36B the same way as the IRS.576 Nonetheless, this maneuver had the important effect of preventing the IRS in a Republican administration from changing its regulation by construing Section 36B as applicable only to State Exchanges.577

570 See supra notes 486–87, 493–528, 541–45, 547–68 and accompanying text. 571 King, 135 S. Ct. at 2498 (Scalia, J., dissenting). 572 Id. at 2492 (Roberts, C.J.). 573 Id. at 2488–89 (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council Inc., 467 U.S. 837, 842–43 (1984)). 574 Id. at 2489. 575 Id. 576 See supra notes 34, 40, 484, 486 and accompanying text. 577 See, e.g., Rick Hasen, King v. Burwell, The Return of “Purpose” in Statutory Interpretation, ELECTION LAW BLOG (June 25, 2015), http://electionlawblog.org/p=73760; see also Abigail R. Moncreiff, King, Chevron, and the Age of Textualism, 95 B.U. L. REV. ANNEX 1, 1–7 (2015) (maintaining that (1) Roberts recognized as a textualist that his interpretation rendered § 36B’s language (“established by the State”) superfluous and therefore had to

2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 221

Finally, longstanding precedent had established a specific interpretive principle for tax statutes: Any exemptions (including credits) had to be expressed in unmistakably clear language.578 Because King held that the ACA was ambiguous as to whether Congress had authorized tax credits on Federal Exchanges, there was no such clear statement, so this case law dictated finding such subsidies unavailable. The Court simply ignored its own settled rule.579 King demonstrates that precedent does not constrain judicial discretion in construing statutes. Over the past generation, the Court has formally embraced textualism, but has manipulated that approach to reach its desired outcome—including the remarkable linguistic conclusion that the word “State” is ambiguous. Likewise, the cases bear out Llewellyn’s insight that specific canons of construction are formalistic tools deployed to mask discretionary judgments.580 For example, in King, the Court did not rely on the mine-run of decisions that applied the anti- surplusage and Chevron canons, but rather cited the few opinions that recognized exceptions to those rules.581 The Justices selectively invoke precedent to justify a result arrived at on other grounds. 5. Pragmatism. The Court sowed confusion by purporting to adhere to textualism, which forced it to manufacture an ambiguity (“State” could mean “the Federal Government”) that then needed to be resolved by resort to Obamacare’s broader context and

claim it was “ambiguous”; (2) the latter assertion triggered Chevron, which would have obliged the Court to defer to any future contrary IRS construction; and (3) Roberts escaped that dilemma by invoking the amorphous “major questions” exception to Chevron); Gluck, supra note 51, at 65–67, 75, 82, 93–98 (stressing that the King Court’s limitation of Chevron is part of a broader trend in its jurisprudence). 578 See Yazoo & Miss. Valley R.R. v. Thomas, 132 U.S. 174, 186–89 (1889) (applying this rule and citing cases recognizing it). 579 See Blumstein, supra note 357, at 99–100 (pointing out that this old interpretive principle, developed in the tax context, could not easily be reconciled with the more recent and general Chevron rule of deference to an agency’s construction of its organic statute (including the IRS’s reading of tax credit provisions), but that the Court did not address this tension because it refused to apply Chevron). 580 See Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statues are to be Construed, 3 VAND. L. REV. 395, 399 (1950); see also supra note 288 and accompanying text. 581 See supra notes 571–77 and accompanying text. 222 GEORGIA LAW REVIEW [Vol. 51:121 structure.582 Clarity would have been promoted if the majority had frankly acknowledged that Section 36B had a clear meaning that no other text in the ACA contradicted, but that they were pragmatically extending such credits to Federal Exchanges for two practical reasons. First, this result would promote Congress’s overarching purpose: increasing the availability of affordable health insurance.583 Second, the potentially disastrous economic and social consequences of restricting the tax credit to State Exchanges would be avoided.584 To be sure, Chief Justice Roberts recognized such real-world concerns, but he tried to cram them into the Procrustean bed of textualism.585 He likely did so for fear of publicly admitting the discretionary nature of King’s statutory interpretation, which would contradict his famous statement that Justices simply enforce the law as written, like umpires calling balls and strikes.586 However, openly endorsing pragmatism seems preferable to surreptitiously doing so, which leads to analytical confusion.

582 See supra notes 486, 508–15, 526–32, 547–55, 568–70 and accompanying text. 583 See supra notes 16, 330–42, 424, 428, 532, 547–50 and accompanying text. 584 See supra notes 551–55 and accompanying text; see also Selby, supra note 178, at 618– 21, 628, 632–33, 641–42, 647 (arguing that Chief Justice Roberts determined that the strong textualist presumption that awkward statutory language reflects compromise had been rebutted because (1) there was no evidence that the disputed “tax credit” provision resulted from such a bargain; (2) the text did not affirmatively exclude Federal Exchanges from these subsidies; and (3) such an exclusion would severely undermine the statute’s purpose); Moncreiff, supra note 577, at 7–9 (contending that the Court properly effectuated Congress’s actual intent, revealed in extrinsic evidence, to provide tax credits on all Exchanges instead of applying a “legalistic” textualism that would have frustrated that intent by taking the words “by the State” literally). 585 The architects of the King challenge have asserted that “the Court openly adopted a non- textualist approach.” See Adler & Cannon, supra note 357, at 52. Yet Chief Justice Roberts explicitly claimed to be hewing to textualism—examining the phrase “Exchange established by the State” in the context of the overall statute to determine whether its meaning was plain. See King, 135 S. Ct. at 2489–92. This holistic textualist analysis yielded the conclusion that “the text is ambiguous” and that therefore the Court “must turn to the broader structure of the Act to determine the meaning of Section 36B.” See id. at 2492. In short, the majority agreed with the dissent that textualism was the appropriate methodology, but read the statute differently. The problem is that the Court did not faithfully apply textualism, as the phrase “established by a State” has a single clear meaning, both on its face and in the context of the entire ACA. Thus, Chief Justice Roberts effectively drained “textualism” of any real content. 586 See Pushaw, Paradox, supra note 380, at 2050 nn.392–93 and accompanying text (citing and criticizing Roberts’s statement). 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 223

Perhaps most notably, living in a legal bubble led both Chief Justice Roberts and Justice Scalia to avoid mentioning political reality: The Democratic Congress that passed Obamacare had been replaced in 2012 by a Republican House and a Senate with a shrunken Democratic majority.587 Consequently, everyone knew that adopting the dissent’s construction would probably have gutted the ACA, because House Republicans would have been unlikely to amend the statute to save it.588 Even in the most optimistic scenario, there would have been months (perhaps years) of upheaval until either (1) Congress revised Obamacare, or (2) States established their own Exchanges, which would entail protracted political wrangling.589 The King dissenters were willing to tolerate such turmoil, whereas the other Justices were not.590 In a nutshell, Chief Justice Roberts talked textualism, but practiced pragmatism. Thus, his opinion did not articulate and apply a coherent approach to statutory interpretation, even if one agrees with his conclusion. Law professors, who overwhelmingly favored the ACA, tended to rehash the majority’s arguments

587 See Federal Election Commission, Federal Elections 2012 (July 2013), http://www.fec. gov/pubrec/fe2012/federalelections2012.pdf. 588 See Gluck, supra note 51, at 101, 107–08 (speculating that the majority did not mention this fact because many of the Court’s doctrines assume the absence of gridlock and the relative ease of amendments, even though that assumption is empirically false); see also Jack M. Balkin, The Supreme Court Reaffirms the Social Contract: The ACA as a Framework Statute, BALKINIZATION, June 25, 2015, http://balkin.blogspot.com/2015/06/the- supreme-court-reaffirms-social.html (defending the Court’s interpretation both as a matter of statutory construction and as a recognition that the ACA was a major framework statute that changed America’s social contract to include guaranteed health care). 589 Three quarters of the States refused to establish Exchanges as an expression of their displeasure with Obamacare, which was passed exclusively by Democrats and pushed especially hard by members of Congress from populous “blue” States like California, New York, and Illinois even though polls showed that the majority of Americans opposed the law. See supra notes 32–33, 345–67, 373, 484, 537–38, 587–89 and accompanying text. 590 See Blumstein, supra note 357, at 102–03, 107–08 (contending that the Court should have adhered to its judicial role by giving effect to the statute that Congress enacted in 2010, despite short-term problems, which would have allowed the now-Republican Congress and Democratic President to work out a legislative solution by exercising their constitutional powers); see also John O. McGinnis, John Roberts’s Principled Mistake, CITY J., June 29, 2015, at A14 (arguing that King’s holding that the ACA’s overall purpose trumped the statute’s text expanded Congress’s powers by signaling that the Court will always sustain comprehensive legislation by “fixing” specific statutory provisions, even those that incorporate a conflicting purpose that may have been enacted through a process of compromise). 224 GEORGIA LAW REVIEW [Vol. 51:121 instead of providing a more solid legal grounding.591 Conversely, conservatives typically defended Justice Scalia’s position.592 Hence, a more nuanced and principled analysis is needed.

IV. THE SUPREME COURT AND STATUTORY INTERPRETATION

National Federation and King reveal the intellectual weaknesses of the Court’s general approach to statutory construction and its application of specific interpretive canons. Those two cases provide a springboard for a broader critique of statutory interpretation that identifies the major problems and proposes concrete solutions.

591 Two scholars who endorsed the Court’s approach, however, did add the crucial insight that the Court expressly espoused textualism but did not strictly adhere to it for practical reasons. First, Professor Lederman praised the majority for concluding that a “plain meaning” reading of Section 36B was untenable in light of the context, structure, operation, and purpose of the ACA: to ensure that Federal and State Exchanges would function in the same way, which would have been impossible if tax credits were denied for insurance purchased on Federal Exchanges. See Marty Lederman, Textualism? Purposivism? The Chief Justice Comes Down on the Side of Interpretive Pragmatism, SLATE (June 25, 2015), http://www.slate.com/ar ticles/news_and_politics/the_breakfast_table/features/2015/scotus_roundup/supreme_court_20 15_john_roberts_ruling_in_king_v_burwell.html. He then noted that the Court “nominally invoke[d]” textual formalism, but pragmatically attempted to determine Congress’s probable intent and purposes, even when its written handiwork was bad. Second, Professor Gluck asserted that Chief Justice Roberts applied the “holistic” strain of textualism by interpreting the ACA’s tax-credit provisions in a way that made sense of the overall legislative plan found in the statute itself—including its statement of purposes—rather than in external sources like legislative history. See Gluck, supra note 51, at 65–66, 74–75, 80–81, 87–93. However, she mentioned in passing that the Chief Justice may care more about pragmatically reaching a sensible result than slavishly following a textualist methodology. Id. at 100. That latter statement perhaps implicitly acknowledges the weakness of her claim that Roberts was actually implementing textualism. The key point is that King typifies the pragmatic approach taken by the majority of Justices, despite their frequent textualist rhetoric. Unlike Professors Lederman and Gluck, however, I do not think such “closet pragmatism” is desirable. For another original analysis, see Einer Elhauge, Symposium: Economics Beats Formalism, SCOTUSblog (June 25, 2015), http://www.scotusblog.com/2015/06/symposium- economics-beats-formalism/ (maintaining that Justices like Roberts and Kennedy construe a statute’s text to advance its likely purposes and to reach an economically sensible result, whereas Justices like Scalia and Thomas are formalists who strive for abstract linguistic accuracy because they fear that extra-textual considerations like purpose and economics will lead judges to impose their own policy preferences). 592 Such a defense made perfect sense when articulated by the masterminds behind the ACA tax-credit litigation, whose arguments Scalia adopted. See Adler & Cannon, supra note 357. James Blumstein further developed these ideas and added several original points, which I have described supra notes 528, 544, 546, 565, 568, 579 and accompanying text. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 225

A. THE LESSONS OF THE OBAMACARE DECISIONS

In both National Federation and King, all of the Justices claimed to be following a textualist methodology.593 However, the majority grossly distorted the ACA’s language in construing the IM “penalty” as a tax (National Federation) and “State” Exchanges to include Federal ones (King).594 Therefore, the most logical inference is that the Court relied on pragmatism sub rosa, thereby producing two analytically garbled opinions. Clarity would have been promoted by forthrightly embracing a pragmatic approach.595 Such candor would have been especially welcome in King, which featured the standard pragmatic method: taking into account not merely a statute’s text but also Congress’s intent, its overall purpose, and precedent to derive an interpretation that makes practical sense.596 Accordingly, the Court should have dropped the pretense that it was using textualism to determine the semantic meaning of the ambiguous phrase “established by the State.” Instead, the majority should have held, on explicitly pragmatic grounds, that enforcing the clear meaning of Section 36B and related provisions—confining tax credits to State Exchanges— would have jeopardized the entire ACA, frustrated Congress’s main purpose, and generated possibly dire consequences.597 To be sure, there were pragmatic arguments going the other way: that Congress’s intent and purpose behind the tax credit was to encourage States to establish Exchanges; that this federalism goal would be frustrated by extending the credit to Federal Exchanges; that enforcing the provision as written would not necessarily undercut the rest of Obamacare; and that in any event Congress (not the Court) should amend the statute if problems arose. Such debates, though, are inherent in pragmatism, which allows for a flexible balancing of factors. The majority’s reluctance to utter the “p” word likely reflected its desire to maintain its image as a neutral expositor of the law. Expressly embracing pragmatism would require acknowledging

593 See supra notes 19, 37–39, 400–02, 486–523, 569–70, 582 and accompanying text. 594 See supra notes 20–40, 396–607 and accompanying text. 595 See supra notes 27, 39, 467–69, 532, 583–90 and accompanying text. 596 See supra notes 37–40, 486, 510–15, 532, 541–42, 547–55, 568–70, 572, 582–86, 590 and accompanying text. 597 See supra notes 38–39, 532, 583–84 and accompanying text. 226 GEORGIA LAW REVIEW [Vol. 51:121 that statutory interpretation is not a mechanical process of ascertaining and applying a determinate law, but rather entails the exercise of discretion that considers legal materials in light of policy aims and real-world implications. Yet the Court’s refusal to admit that it was engaging in pragmatism was dishonest and produced incoherent opinions, neither of which promotes the rule of law or public confidence. Nonetheless, the Court is leery about endorsing pragmatism because it always presents the danger that such discretion will become unbridled—that the Justices will (perhaps subconsciously) override an Act of Congress to reach what they subjectively believe is the best practical and policy result.598 Of course, they would never admit that they were engaging in such raw pragmatism. The National Federation opinion, however, is difficult to comprehend in any other way. All relevant legal sources dictated the dissent’s conclusion that the ACA imposes a “penalty”—a coercive monetary punishment for violating a regulatory law (the IM) enacted under the Commerce Clause.599 Nevertheless, the Court baldly asserted that this “penalty” could also be read as a “tax” (an enforced contribution to fund government activities) and hence could be sustained under Congress’s Taxing Power.600 Because this interpretation had no discernible legal basis, it appears to have been concocted solely to salvage Obamacare. The majority of Justices wanted this outcome, albeit for different reasons. The four liberal Democrats wished to save the ACA because it was consistent with their political, ideological, and policy vision.601 By contrast, Chief Justice Roberts was probably influenced by institutional concerns—a desire to protect the Court’s public reputation as nonpartisan by upholding a law that conflicted with his conservative Republican views.602 Unfortunately, he failed to achieve that goal because people learned he had switched his vote under intense pressure from Democrats.603 So the Court’s implicit resort to naked pragmatism

598 See supra notes 7, 27, 44–50, 181–82, 229–33, 243 and accompanying text. 599 See supra notes 20–24, 336–38, 375–78, 381, 400, 415–72, 477–78 and accompanying text. 600 See supra notes 25–27, 374–75, 382, 396–414, 437, 454, 456–57 and accompanying text. 601 See supra note 27 and accompanying text. 602 See supra notes 25–27, 467–69, 585 and accompanying text. 603 See supra notes 25, 382, 470–72 and accompanying text. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 227 in National Federation proved to be legally dubious, politically naive, and institutionally damaging. Such relentlessly result-oriented pragmatism also infused the majority’s treatment of several specific canons of construction. For example, in National Federation, Chief Justice Roberts manipulated the rule of construing ambiguous statutes to avoid constitutional issues.604 This canon never should have been invoked, however, because the meaning of the word “penalty” was clear. Furthermore, imaginatively reading this “penalty” to be a “tax” did not avoid, but rather raised, the hard constitutional question of whether Congress could levy such an unprecedented tax.605 Meanwhile, in King the Court did not even bother with the pretense of adhering to a pair of established canons: Chevron deference and the rule against “surplusage.”606 Rather, the majority declared that neither canon should apply because of the unique circumstances surrounding the ACA’s extension of tax credits to insurance purchased on “an Exchange established by the State.”607 These assertions reinforce the impression that specific canons are so malleable as to be worthless as constraints on discretion. In short, the Obamacare cases featured freewheeling statutory construction. Unfortunately, they are merely the latest examples of a common practice. The obvious question is: Why do the Justices feel at liberty to read statutes any way they please?

B. POSSIBLE EXPLANATIONS FOR FREE-FORM STATUTORY INTERPRETATION

The Court’s impressionistic statutory construction reflects multiple factors, many of which have been discussed: the quantity and complexity of modern statutes; their often poor draftsmanship; the Justices’ unbridled discretion to choose from a variety of interpretive methodologies and canons; conflicting precedent that can be cited to support almost any proposition; and the Justices’ tendency to hide pragmatism behind textualism and the canons in an attempt to convince the public (and perhaps themselves) that they are doing nothing more than routine statutory construction.

604 See supra notes 19, 374–75, 382, 400–02, 455–63 and accompanying text. 605 See supra notes 413–14, 459–63 and accompanying text. 606 See supra notes 40, 502–03, 571–75, 581 and accompanying text. 607 See supra notes 40, 486, 503, 508–15, 526, 572–77, 581 and accompanying text. 228 GEORGIA LAW REVIEW [Vol. 51:121

Yet dissenting Justices regularly expose the majority’s proffered analysis as a fig leaf to rewrite statutes. Thus, unexpressed reasons must be driving the Court’s assumption of the role of a Council of Revision. The most likely explanation is that the Justices are extremely confident about their own intellectual powers, legal acumen, and integrity, but very skeptical that members of Congress possess similar qualities. Such judicial arrogance has recently become especially pronounced because, since Justice O’Connor retired, none of the Court’s members has served as a legislator—or in any elected position.608 So unlike a John Marshall,609 Hugo Black,610 or Earl Warren,611 no current Justices have first-hand experience that might give them a better understanding of how the political process operates and an appreciation for the work legislators do. Rather, the Justices now come from an elite club of federal appellate judges who attended Harvard or Yale Law School.612 Not surprisingly, they tend to exalt original analytical brilliance over mundane adjudication— like giving effect to a statute as written. This problem is exacerbated because the Justices’ only direct contact with Congress occurs at their Senate confirmation hearings, which have degenerated into nasty political theater.613 Most notably, in the late 1980s, Democratic Senators began to attack Republican nominees as sexist and racist, and the nominees had to deny such accusations and provide assurances that they had no preconceived opinions about issues such as abortion and affirmative action—encapsulated in John Roberts’s comparison of Justices to umpires.614 On the other side of the political spectrum,

608 See Pamela S. Karlan, Democracy and Disdain, 126 HARV. L. REV. 1, 67 (2012) (stressing this unprecedented absence of any Justice with electoral experience). 609 Marshall was elected to both the Virginia Legislature and the federal House of Representatives, and also served as Secretary of State. See HERBERT A. JOHNSON, THE CHIEF JUSTICESHIP OF JOHN MARSHALL 9–10 (1997). 610 Black was appointed directly from the Senate, where he had served for many years. See ROGER K. NEWMAN, HUGO BLACK: A BIOGRAPHY 125–230 (1994). 611 Warren had been California’s Governor and Attorney General. See LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS 11–14 (2000). 612 See Karlan, supra note 608, at 67. The only exception is Elena Kagan, the former Harvard Law Dean, but even she served as Solicitor General, nicknamed the “tenth Justice.” Id. 613 See id. at 66–71; Pushaw, Perils, supra note 161, at 584–85, 588. 614 See Pushaw, Paradox, supra note 380, at 2050 nn.392–93 and accompanying text. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 229

Obama nominee Elena Kagan fended off Republican charges that she would be a liberal judicial activist by insisting that, on the Court, “it’s law all the way down.”615 Forcing nominees to make such vacuous statements may be one reason that, once confirmed, they are afraid to acknowledge that they are exercising pragmatic discretion. But the political circus surrounding nominations simply reinforces the Justices’ perception that members of Congress are political hacks. Moreover, polls show that the American public shares the Court’s low estimation of Congress and high opinion of itself.616 Therefore, the Justices can interpret statutes however they wish, with little worry that Congress will effectively check them through impeachment, investigations, reduction of resources, or even the amendment of statutes (a cumbersome process).617 Admittedly, the foregoing theories are speculative, as the Justices have never publicly confessed that their constructions of statutes are arbitrary. Nonetheless, their opinions are so unpersuasive and inconsistent—both internally and across cases— as to cry out for latent explanations. Regardless of what has caused the problem of capricious statutory interpretation, however, it remains to be seen whether there are any solutions. I will propose a few.

C. TOWARDS A MORE COHERENT SYSTEM OF STATUTORY CONSTRUCTION

The Court faces little external pressure to alter its approach. Citizens and the media show no sustained interest in statutory interpretation. Furthermore, even an unpopular individual decision that generates national attention does not appreciably affect the public’s trust in the Court, especially as compared to Congress.618 In turn, Congress is loath to challenge the Court.619

615 See id. at 2050 n.393. 616 See, e.g., Jeffrey M. Jones, Trust in the U.S. Judicial Branch Sinks to New Low of 53%, GALLUP, Sept. 18, 2015, http://www.gallup.com/poll/185528/trust-judicial-branch-sinks-new- low-aspx (“Despite this year’s drop [in trust], the judicial branch retains higher public trust than either of the other branches of government.”). 617 See supra notes 14, 42, 616 and accompanying text. 618 See supra notes 14, 42, 616–17 and accompanying text. 230 GEORGIA LAW REVIEW [Vol. 51:121

Realistically, then, any change in statutory construction would have to come from the inside. Such a purely internal movement is possible. After all, over the past generation the Court has shifted its stated method of statutory interpretation from a discretionary multi-factor inquiry to textualism. It could therefore complete this transformation by actually applying textualism.620 Alternatively, the Court could follow pragmatism in both theory and practice. Either way, institutional integrity and the rule of law should impel the Court to make a choice between the two. Initially, standard pragmatism might appear to be the best option because the complicated nature of modern legislation seemingly demands a correspondingly complex interpretive methodology. Statutes are the imperfect product of a lengthy process of negotiation and compromise among hundreds of legislators, staffers, and interest groups that often results in ambiguous or vague provisions and problems of applicability that Congress did not anticipate.621 Consequently, the Court must exercise ample discretion by consulting all evidence of a statute’s meaning (not merely its text) and considering all the facts and circumstances before choosing an interpretation that best promotes the policy goals of the enacting Congress and that reaches the most reasonable real-world result. Justices who find the foregoing arguments persuasive should unequivocally adopt pragmatism, not apply it on the sly while formally endorsing textualism. Doing so would be intellectually honest and generate far more cogent opinions. On balance, however, pragmatism presents unacceptable practical, constitutional, and theoretical difficulties. Ironically, pragmatism generates big practical problems, which the intricacy of modern legislation has exacerbated. For starters, the Justices barely have time to read lengthy statutes—much less analyze their legislative history, recreate their historical context, identify the multiple policy aims of various Representatives and Senators, review precedent, and decide how to apply all this

619 See Neal Devins, Should the Supreme Court Fear Congress?, 90 MINN. L. REV. 1337 (2006) (arguing that Congress as an institution poses little threat to the Court, even though individual members may criticize particular rulings to score political points). 620 I disagree with Judge Posner, who rejects as naive reform proposals that urge a renewed judicial commitment to textualism and other “legalisms.” POSNER, supra note 222, at 15. 621 See supra notes 43–44, 144–46, 152–54, 173, 207–28 and accompanying text. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 231 evidence to reach the best result. In any event, the Justices cannot examine such material with a discerning eye because none of them has ever served in Congress. And even a Justice who had legislative experience would not be privy to the off-the-record bargaining that led to a statute’s particular wording. Moreover, pursuing that line of inquiry might expose unsavory dealmaking, which is why the Court has always been reluctant to dig into legislative motive.622 Another pitfall is that a Justice, in exercising discretion to determine what result a “reasonable” legislature would have wanted, will project onto Congress intents, purposes, and policy goals that fit with his or her personal, political, and ideological perspectives. To top it off, pragmatism rewards sloppy drafting, as Congress can leave it up to courts to clean up its messes. Pragmatism also undermines the Constitution’s basic design.623 Most pertinently, Article III grants courts the “judicial power” of interpreting and applying the law. Statutory “law” must be enacted pursuant to Article I, which requires a laborious process of agreement by the politically accountable House, Senate, and President. Our constitutional democracy presumes that Congress uses words to convey their semantic meaning to a reasonable person, based on normal linguistic conventions and the context of the specific legislation (such as its entire text and its subject matter).624 Otherwise, citizens could not hold their representatives accountable—or even know if they were complying with Congress’s directives. Conversely, the “law” does not include the subjective understandings, intents, objectives, or policy desires of members of Congress who could not, or did not, enshrine their views in the statute.

622 See supra notes 160, 174–78, 228 and accompanying text. For example, in Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), the Marshall Court declined to consider allegations of the Georgia legislature’s “impure motives” and “corruption” in enacting a law purchasing land from Indian tribes. Id. at 130–31. 623 For elaboration of the constitutional arguments set forth in the following three paragraphs, see supra notes 45–49, 114–24, 192–99, 230, 240–42, 488–92 and accompanying text. 624 This context sometimes reveals that Congress departed from the ordinary meaning of words, as when it supplies a less common definition or uses technical, legal, or commercial terms of art. See supra notes 1–2, 45–50, 183–203, 240–42, 250 and accompanying text. 232 GEORGIA LAW REVIEW [Vol. 51:121

The Court can legitimately depart from a statute’s semantic meaning only in the unusual situation when doing so is necessary to produce a result that is truly absurd, not merely one that the Justices believe is wrong or unwise. In rare cases, however, a provision may be genuinely unclear. If so, nontextual legislative materials may be consulted to try to ascertain its semantic meaning. But this situation should be contrasted with manufacturing ambiguity or vagueness in a statutory provision that is plain—such as by asserting that “penalty” means “tax” or that “a State” refers to “the Federal Government.” The Constitution, then, presupposes that the Court in exercising “judicial power” will give effect to a statute as written. If Congress did not mean what it said, it can amend or repeal its law. Moreover, no philosophical reason supports the pragmatists’ assumption that a complex problem requires an equally complicated solution. On the contrary, thinkers dating back to Pythagoras have argued that a simpler explanation or approach is better than a more convoluted one.625 Textualism is more streamlined than—and hence superior to—pragmatism. Overall, practical, constitutional, and theoretical considerations favor the Court’s adoption and application of textualism as its basic approach. Furthermore, the Justices should candidly recognize the limited utility of the canons of construction. Admittedly, some canons can aid textualism by creating presumptions about the way ordinary people understand language—for example, that words in a list refer to the same type of thing. Unfortunately, however, canons are often deployed to rationalize tortured statutory interpretations. For example, the Court frequently invokes the rule that statutes should be read, where reasonably possible, to avoid constitutional issues, but then sets forth implausible constructions.626 Despite their potential for mischief-making, however, canons are so deeply rooted that the Court will never discard them. Moreover, they do little independent work and are instead usually trotted out to provide auxiliary support for a conclusion already reached after applying a general interpretive methodology.

625 See CHRISTOPHER REIDWEG, PYTHAGORAS: HIS LIFE, TEACHING, AND INFLUENCE 67–78 (2d ed. 2008). 626 See supra notes 19, 400–02, 455–64 and accompanying text. 2016] TALKING TEXTUALISM, PRACTICING PRAGMATISM 233

Therefore, genuine reform hinges on changing that basic approach, not the canons.

V. CONCLUSION

The Obamacare cases highlight a larger problem. The Court does not consistently apply a general method of statutory construction and specific interpretive canons to determine and implement the meaning of an Act of Congress as written. Rather, a majority of Justices typically reach their preferred result, then cobble together a rationale that asserts fidelity to textualism (but implicitly adopts pragmatism), cherry-picks language from the contested statute and its legislative history, manipulates canons of construction, and selectively cites precedent. Although the Court cannot achieve perfect consistency, it can improve on this ad hoc muddle. At the very least, Justices who practice pragmatism should explicitly acknowledge they are doing so. However, the optimal solution would be for the Court to commit to textualism as its basic approach, both in theory and fact. Alas, the Justices have little practical incentive to change their ways. But there is no reason for scholars to play along with this game by praising the Court’s statutory interpretation only when it leads to results they like, as I believe occurred with the Obamacare cases. More importantly, neither American voters nor their elected representatives should accept this status quo.