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In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined — “to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan.
– King v. Burwell, Chief Justice Roberts’s opinion for the Court
Statutory interpretation often seems like a doctrinal and jurisprudential abyss. We didn’t need “Obamacare” to show us that, but it sure helped. The Court’s statutory cases over the past decades have had the feeling of being “one-offs”: the Court seems to careen from case to case, wielding literally hundreds of interpretive presumptions that have no hierarchy among them, no link to Congress, and that seek to impose a coherence and simplicity on modern statutes that those statutes cannot bear. It is nearly impossible to predict which of these presumptions — the so-called canons of construction — will control the next case. The Court’s dominant theorists, its textualists, defend these doctrines on the ground that Congress is incomprehensible and so these rules and a laser focus on text are the best that courts can do. And yet no modern court is going to read a thousand-page statute cover-to-cover. Sometimes the cases focus on a single word; it can feel like a game even though the stakes are incredibly high.
These moves have been grounded in 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. Should courts try to understand how Congress works, or is Congress too complex to understand? Should courts be “tough” on Congress, perhaps to incentivize Congress to draft better the next time, or should courts cut Congress some slack, and even correct enacted imperfections? Perhaps courts are best conceived as guardians of the U.S. Code, obligated to shape increasingly imperfect statutes into a more coherent product for the public, no matter how disconnected that result may be from Congress’s own intentions. The Court has long resisted definitively answering these basic questions, even as the most difficult statutory cases turn on them.
Into this gulf came King v. Burwell, the challenge to the Affordable Care Act (ACA) that teed up like no other case the questions of the Court’s role, capacity, and vision of Congress in an increasingly complicated statutory landscape. King required the Court to consider a potentially fatal imperfection in a 2700-page statute that passed after years of debate but used an unorthodox pathway through Congress that deprived the Act of its expected opportunity for cleanup. The case was viewed as a major test for textualism, and both parties briefed it using that interpretive framework. Both argued that text and canons of construction supported their respective positions — even as those doctrines rest on an unstated and, for the ACA, inappropriate model of how Congress functions: they assume that Congress drafts to perfection and follows the “textbook” legislative process.
But make no mistake: King was also the challengers’ attempt to use the Court’s preference for this text-and-canon approach, with its associated reluctance to delve into legislative complexity, to make the Court a pawn in a game of rough politics. The case’s architects sought, as they put it, to “exploit” four isolated words in a 2700-page “monster” filled with “contradictions and incongruities” to work a do-over of their failed 2012 constitutional challenge. It was an effort to pull the statute apart by concentrating on “bits and pieces of the law,” the instantiation of what Professor Thomas Merrill wrote in 1994 was the then–newly ascendant theory of textualism’s greatest risk: converting the Court’s role to answering a clever puzzle, masking in neutral-sounding interpretive presumptions a deeply unforgiving view of Congress.
The Court did not take the bait. It did not conclude that the ACA was too difficult to understand, and so decide that the best that it could do was to enforce the contested text in isolation or use a convenient shortcut — such as a canon or deference to the agency — to avoid a trip deep into the statutory weeds. Instead, King gives us an opinion written by the Chief Justice of the United States that rejects Chevron deference for the agency; holds that the assumptions of perfection underlying the canons are unrealistic as applied to the ACA; cites Justice Felix Frankfurter (twice!) for the proposition that “fair adjudication” requires the Court to try to understand “Congress’s plan”; and concludes by invoking Marbury v. Madison, the case that signals like no other that the Court has the authority and duty to get in the game.
King is the Court’s most explicit recognition ever of modern statutory complexity. At the same time, it is the Court’s most optimistic characterization of both its own and Congress’s abilities in years. Whereas the Court’s recent statutory interpretation jurisprudence has been marked by a targeted focus on a few contested words, King responds by looking at the full picture, at Congress’s “plan” — a term that itself sends a strong message about Congress’s rationality and the inherent purposiveness and functionality of legislation. And just as Marbury’s famous deferral to a coordinate branch was simultaneously an aggrandizement of the Court’s own power, King’s holding that judges must try to understand the legislative plan simultaneously elevates the importance of the Court in statutory cases. The opinion begins with five pages illustrating the Court’s deep understanding of the ACA’s scheme, and then it pushes the agency — whose help the Court does not need (even as it affirms the agency’s reading) — out of the picture.
Underlying the opinion is the big question of how the Court’s role should evolve in response to our changing legislative landscape. My own work has grappled with this question for some time, illustrating how the Court has vacillated among views of the relevance of the empirical realities of modern lawmaking to the doctrines of statutory interpretation, and how far off the Court is from accurately approximating Congress even when it tries. Embedded in this question is the even larger jurisprudential question of what exactly the doctrines of the field, and so what exactly judges themselves, are supposed to do. Reflect Congress? Improve Congress? Ignore Congress? The Court has steadfastly avoided addressing these matters. King is the most direct attempt to do so and thus, whether it is a fork in the road or another one-off for a special case, it is an important moment.
One response to the modern-legislative-complexity problem is formalism. A second-best response to a Congress that courts can never understand is to devise clear legal doctrines that further rule-of-law values like predictability or coherence. But the canons have mostly failed to play that role, although most textualists argue they are supposed to. A different answer is Chevron deference: the increasing difficulty of modern legislation may be all the more reason to give this terrain to agencies. But King was only the latest in a series of opinions, several last Term alone, that call Chevron’s future into question. Both formalism and Chevron aim to minimize the role of courts in a landscape dominated by statutory law. King, in contrast, reveals that a contingent of the Court may be interested in reversing that course, in destabilizing what were declared in this journal just a year ago to be settled institutional positions — a textualist Court uninterested in how Congress works and a robust Chevron doctrine to handle Congress’s messes. This Court seems to want the big questions for itself.
Justice Scalia’s dissent decries these moves as an activist departure from “the normal rules of interpretation.” But imposing perfection on an imperfect statute, as the canons would have, would itself have been a kind of aggressive judicial legislation. Nor does King’s emphasis on the “plan” mean a resort to legislative history or other subjective factors maligned by textualists. The opinion derives its understanding of the ACA’s scheme from its text, structure, and the statute’s own, codified “stated purposes” (not legislative history). Even King’s concept of “plan” has appeared before, both in a long (but perhaps forgotten) tradition in the pre-textualist era and also in textualist opinions themselves. Textualism is chock full of rules that emphasize holistic interpretation — rules that sit in some tension with other textualist rules that advance a laser focus. One way to understand King is that the Chief Justice chooses the holistic side of textualism, one that has always shared with purposivism the assumption that Congress legislates rationally, with means to an end.
The dissent was also wrong to adopt the challengers’ framing and portray the case as a text-versus-purpose showdown. As an initial matter, it was the challengers who, from the beginning, adopted an aggressive story of the ACA’s purpose, supported by legislative history: they argued that Congress intended the statute to read as they claimed, and the King dissent essentially adopted that understanding. But more importantly, to ask whether textualism or purposivism “won” in King is to miss the real divide across the opinions.
The real divide is over how a Court that unanimously agrees on the priority of text-focused interpretation sees its own role in relation to Congress’s written plans. The majority concludes that it wants a central role, and to have one it must show that it is up to the challenge of understanding Congress’s work, warts and all. This is why the opinion begins with a detailed explanation of the ACA’s interlocking statutory (textual) provisions. And this is where the majority unquestionably also aligns itself with the Legal Process tradition, noted for its assumption that Congress is reasonable and its belief in the judicial duty to try to understand it. That this return to an earlier moment of optimism about the Court–Congress relationship — from six Justices, almost all of whom came of age during Legal Process’s heyday at Harvard — comes now in the context of one of the most complex and unorthodoxly enacted pieces of legislation in history makes it all the more remarkable.
This Comment begins with an overview of the politics of the litigation, the opinions, and the ACA’s legislative process. Part II explores the Court’s varying reactions to the problem of legislative complexity and how King’s vision of the Congress–Court relationship differs from, and builds upon, both the textualism and the purposivism that came before. Part III details King’s innovative observations about modern “unorthodox lawmaking” and also the instability the opinion creates by leaving many aspects of the modern legislative context unaddressed. Perhaps most importantly, the Court skirts hard questions about how exactly interpretive doctrine should change to more accurately reflect Congress, and the opinion says nothing explicit about what the Court is to do when there is a statutory mistake — the enormous elephant that neither party dared mention throughout the litigation.
In the end, we return to Marbury. We have been watching the Roberts Court working out its relationship to Congress across all areas of the federal-courts canon for some time. King adds statutory interpretation explicitly to that effort. The Roberts Court has cited Marbury in only eleven statutory interpretation or administrative-deference opinions (majority or dissent) — six of which, including King, came last Term. Something may be afoot. Like Marbury, King’s most important contribution may be in what it says about the Court’s own plan: it is an opinion staking out the Court’s place in an evolving, increasingly complex, imperfect, and dominantly statutory, legal landscape.
* Professor of Law and Faculty Director, Solomon Center for Health Law and Policy, Yale Law School. For their insights and support, I am indebted to Bruce Ackerman, Bill Eskridge, Heather Gerken, Tim Jost, Brett Kavanaugh, Si Lazarus, John Manning, John McDonough, Thomas Merrill, Henry Monaghan, Jon Newman, Anne Joseph O’Connell, Nick Parrillo, Richard Posner, Mark Regan, Judith Resnik, Roberta Romano, Scott Shapiro, Reva Siegel, Peter Strauss, John Witt, the terrific editors at the Harvard Law Review, a team of wonderful Yale students — Jack Boeglin, Jeff Chen, Lucas Croslow, Becca Lee, Noah Lindell, Victoria Black, Liz Dervan, Ariel Dobkin, Grace Heusner, Brian Highsmith, Emma Roth, David Simins, and Rachel Tuchman — and participants at faculty workshops at the University of Michigan and Yale Law Schools. I was co-counsel on a brief in the case, see Brief for Professors Thomas W. Merrill et al. as Amici Curiae Supporting Respondents, King v. Burwell, 135 S. Ct. 2480 (2015) (No. 14-114); the views in this Comment are mine alone.