The much-discussed King v. Burwell1×1. 135 S. Ct. 2480 (2015). decision presented the very complexities that make statutory interpretation simultaneously frustrating and fun.2×2. For an excellent account of these difficulties, see Abbe R. Gluck, The Supreme Court, 2014 Term — Comment: Imperfect Statutes, Imperfect Courts: Understanding Congress’s Plan in the Era of Unorthodox Lawmaking, 129 Harv. L. Rev. 62 (2015). How should a court handle an unanticipated issue that arises after enactment? What should a court do when a piece of the statutory text, as written, does not further the statute’s overall policy? What does it mean to be a faithful agent in those circumstances? What inherent powers does a court have to fix statutory problems on its own account?
The question in Burwell was breathtakingly important: whether people in thirty-four states were eligible for the health insurance tax credits that the Affordable Care Act3×3. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of the U.S. Code). (ACA) relied on to keep healthy people in the risk pool, even as the Act simultaneously gave such people the right to buy health care at no extra cost after they became ill.4×4. In Burwell, the Court explained the role of tax subsidies in the overall scheme of the ACA. To simplify: The statute requires insurers to cover individuals with preexisting conditions without charging higher premiums. Burwell, 135 S. Ct. at 2486 (discussing 42 U.S.C. § 300gg-1(a) (2012)). In order to prevent healthy individuals from staying out of the insurance pool and buying insurance only when they get sick, the ACA imposes an individual mandate requiring everyone either to have health insurance or to pay a tax or penalty to the Internal Revenue Service. Id. (quoting 42 U.S.C. § 18091(2)(I)). Because of the high cost of health insurance, the tax credit makes it possible for lower-income individuals to buy such insurance rather than pay the tax or penalty. See 26 U.S.C. § 36B (2012); Burwell, 135 S. Ct. at 2487. The problem at issue in Burwell was that, for some reason, Congress made the tax credits available only to those who buy their policies through a specified government clearinghouse — an American Health Benefit Exchange “established by [a] State under [Section] 1311” of the ACA.5×5. 26 U.S.C. § 36B. Section 1311 provides that “[e]ach State shall . . . establish an American Health Benefit Exchange . . . for the State.” 42 U.S.C § 18031(b)(1). On its face, that language pretty clearly excludes people who bought their policies through the alternative Exchanges that another provision — Section 1321 of the Act — empowers the Secretary of Health and Human Services (HHS) to establish when a state elects not to set up one of its own.6×6. 42 U.S.C. § 18041(c) (codifying Section 1321 of the ACA). No one seemed to anticipate that so many states — again, thirty-four in all7×7. Burwell, 135 S. Ct. at 2487. — would elect not to establish Exchanges; it was potentially a body blow to the Act’s success.
The Court divided over whether to read the tax credit provision literally. Despite that provision’s surface clarity, the majority read it to authorize payments to individuals purchasing insurance through any Exchange established pursuant to the Act. In the Court’s view, the Act’s technical definition of “Exchange” introduced a shadow of a doubt about whether Congress had treated state- and HHS-run Exchanges as equivalents for purposes of the tax credit provision.8×8. In particular, the Court stressed that the ACA “defines the term ‘Exchange’ to mean ‘an American Health Benefit Exchange established under [S]ection .’” Id. at 2490 (quoting 42 U.S.C. § 300gg-91(d)(21)). Hence, all Exchanges are defined as those established under the provision authorizing state-established Exchanges. In addition, when a state forgoes establishing an Exchange under Section 1311, Section 1321 instructs the Secretary of HHS to establish “such Exchange” in the state’s place. 42 U.S.C. § 18041(c) (emphasis added). In the Court’s view, “[b]y using the phrase ‘such Exchange,’ Section  instructs the Secretary to establish and operate the same Exchange that the State was directed to establish under Section .” Burwell, 135 S. Ct. at 2489. The Court also thought that reading that provision as written would create weird incongruities with many other ACA provisions.9×9. See Burwell, 135 S. Ct. at 2491–92. For example, the Court pointed to “several provisions that assume tax credits will be available on both State and Federal Exchanges.” Id. at 2491. Among other things, the Court noted, “the Act requires all Exchanges to create outreach programs that must ‘distribute fair and impartial information concerning . . . the availability of premium tax credits under section 36B.’” Id. (omission in original) (quoting 42 U.S.C. § 18031(i)(3)(B)). In the Court’s view, applying such a requirement to federally established Exchanges “would make little sense” if those who buy health insurance through such Exchanges are not entitled to those tax credits. Id. at 2492. Most importantly, reading the statute to make the tax credit unavailable in thirty-four states would directly undermine the legislation’s overall purposes.
In dissent, Justice Scalia cried foul, arguing that there was simply no way to read “Exchange established by [a] State under [S]ection 1311” to cover an Exchange established by HHS under Section 1321.10×10. Justice Scalia thus wrote:
Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words “established by the State.” And it is hard to come up with a reason to include the words “by the State” other than the purpose of limiting credits to state Exchanges.
Id. at 2497 (Scalia, J., dissenting). To him, moreover, this odd statute produced just as many incongruities under the majority’s reading as under a more “conventional” reading.11×11. See id. at 2498–99.
Why start an Essay about the history of statutory interpretation at Harvard Law School with King v. Burwell and the ACA? The case encapsulates themes and concerns that defined the work of many of Harvard’s most prominent judges and scholars who wrote about how to read statutes. The ACA, not to mention the process that produced it, was a mess. If ever a statutory outcome reflected path dependence, it was the one with which the Court struggled in Burwell.12×12. The ACA passed by the thinnest of margins, with literally not a vote more than the sixty needed for Senate cloture. See John Cannan, A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History, 105 Law Libr. J. 131, 154–58 (2013); see also Standing Rules of the Senate, S. Doc. No. 113-18, R. XXII § 2, at 16 (2013). And Professor Abbe Gluck has shown that the incongruities grew out of the Senate bill, which awkwardly mashed together two committees’ bills that had handled the Exchange question quite differently. See Gluck, supra note 2, at 76–79. After the initial passage of the House and Senate bills, one might have expected that a House-Senate Conference would fix the incongruities in the mashed-up Senate bill. See id. at 78. But when Massachusetts elected Republican Scott Brown to the Senate in a special election held soon after the initial vote in both Houses, the Democrat majority suddenly lost its sixtieth vote for cloture on any amended version of the Senate bill. See id. In order to pass the ACA, the House had to adopt the Senate bill as it was, warts and all, without any chance for a conference to clean up the bill’s incongruities. See id. Given the incongruities in the statute and the chaotic and closely fought enactment process, one cannot plausibly conclude that Congress decided — that is, formed a “legislative intent” about — the question of whether tax credits should be paid in states in which HHS established Exchanges.13×13. In light of the procedural history, it is not clear how one would even go about reconstructing what Congress meant or intended. Since Senator Brown supplied the forty-first vote for the Republican filibuster, would we want to know his intention about how to answer the question if he were to vote to solve it? Or, since any of the forty-one Republican Senators could have provided that key vote, should the Court try to figure out the softest nay vote and imagine what he or she would have done? Should it be the hypothetical median position of the forty-one holdouts? And how should we take into account the possibility that perhaps none of them would vote for cloture under any circumstances or, at least, not under any circumstances that would have been acceptable to the then-Democrat majority and President? Should we try to figure out what the median voter in Congress would have done? Even if we could figure that out (and, in this case, perhaps we could), why should it matter if the median voter could not fix the legislation without busting the Republican filibuster? And, yet, the Court nonetheless concluded that tax credits must be available through either kind of Exchange because that was the way “Congress meant the Act to operate” and because a contrary reading would not effectuate the ACA “as Congress intended.”14×14. Burwell, 135 S. Ct. at 2494 (second quoting Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 702 (2012) (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting)).
Burwell represents a long tradition of the Court’s taking a hard, even insoluble question and asserting that it has identified what Congress intended to do about that very question.15×15. See infra text accompanying notes 27–32. Though the search for legislative intent may include (as in Burwell) consultation of the statute’s background purpose or “general aim,”16×16. Archibald Cox, Judge Learned Hand and the Interpretation of Statutes, 60 Harv. L. Rev. 370, 370 (1947). Professor Archibald Cox noted that “intent” is sometimes used in that broader sense. See id. at 370–71. This Essay uses “intent” in a second, more technical sense. See infra note 17 and accompanying text. Note that the invocation of a statute’s purpose or general aim carries its own set of challenges. See Max Radin, Statutory Interpretation, 43 Harv. L. Rev. 863, 876–77 (1930) (discussing the problems of identifying the proper level of generality at which to describe a statute’s purpose). the Court’s invocation of intent commonly refers to something more ambitious — the premise that interpreters can somehow zero in on “the specific, particularized application which the statute was ‘intended’ to be given” in the circumstances of the case.17×17. Cox, supra note 16, at 371. Or as Judge Posner once wrote, it is an effort “to think [one’s] way . . . into the minds of the enacting legislators and imagine how they would have wanted the statute applied to the case at bar.”18×18. Richard A. Posner, Statutory Interpretation — In the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 817 (1983). On that account, even when Congress has not explicitly answered a question, even when it has sent conflicting signals, or even when it has enacted a policy that seems more than a little bit off, the judge properly asks what Congress intended about the problem at hand and then attributes the answer to the legislature.
In work ranging from legal realism to Legal Process purposivism to the formalist “new textualism,” a long line of Harvard judges and law professors have resisted that intentionalist frame of analysis. In the hard cases that judges and law professors worry about (cases like Burwell), legislative intent is a fiction, something judges invoke to elide the fact that they are constructing rather than identifying a legislative decision. And many Harvard judges and professors have made it their project to separate statutory interpretation from the security blanket of “legislative intent,” replacing it with a less soothing but franker assessment of how alternative approaches allocate power among competing government institutions.
Certainly, human beings routinely attribute intentions to multimember institutions such as sports teams, businesses, and armies.19×19. See, e.g., Stephen Breyer, Active Liberty 87 (2005) (observing that it is common “to speak of the intentions of an army or a team, even when they differ from those of any, or every, soldier or member”); Robert A. Katzmann, Judging Statutes 34–35 (2014) (making a similar point about “local governments, trade associations, and businesses,” id. at 35). But when the questions get tough, those intentions are constructed, not real.20×20. Scholars who invoke legislative intent are more apt than the Court to acknowledge that the idea is a construct or metaphor for something more complex. See, e.g., Victoria F. Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the Rules, 122 Yale L.J. 70, 81 (2012). Hence, in the case of statutory interpretation, the challenge is how to decide what should count as Congress’s decision and to determine what creative license judges should have to build upon or repair Congress’s handiwork. Should the Court in Burwell have read the tax credit provision in a way that made the statute more coherent with the general background purposes evident from the overall statutory scheme? Or should it have hugged the seemingly plain language of the most immediately applicable text, as Justice Scalia would have?21×21. See King v. Burwell, 135 S. Ct. 2480, 2496–97 (2015) (Scalia, J., dissenting) (emphasizing the clear import of the tax credit provision). Each position has a plausible institutional grounding in legislative supremacy and judicial power; neither can claim to capture an actual decision made by Congress on the question at issue.
Though an institutional approach to reading statutes is hardly the exclusive preserve of Harvard judges and scholars,22×22. See, e.g., Jerry Mashaw, As if Republican Interpretation, 97 Yale L.J. 1685, 1686 (1988) (arguing that any interpretive method necessarily reflects a theory of appropriate “institutional roles” for the actors involved); Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 Harv. L. Rev. 593, 593–94 (1995) (maintaining that every theory of interpretation involves a theory of legislation and of adjudication). Obviously, the institutional approach applies with no less force to the way agencies approach Acts of Congress and the way courts review agency interpretations of law. For simplicity, this Essay will focus on the relationship between Congress and the judiciary. such an approach has pervaded Harvard’s take on statutes for more than half of its two centuries. Having very little material to work with (the Constitution says almost nothing directly),23×23. See infra note 187 and accompanying text. a good deal of Harvard’s legislation scholarship focuses on theories of legislative and judicial power rather than on trying to perfect the search for legislative intent. In particular, a hallmark of Harvard’s contributions to the field has been what Professors Henry Hart and Albert Sacks came to describe as “institutional settlement” — the proposition that fights about interpretation theory are really fights about different actors’ complex institutional roles and relationships.24×24. See Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process 4–5 (William N. Eskridge, Jr. & Philip P. Frickey eds., Foundation Press 1994) (1958). That theme, in fact, has run through the work of Harvard’s realists, progressives, New Dealers, Legal Process purposivists, and modern formalists. Thinkers as far apart in their prescriptions as Dean James Landis and Justice Scalia used the same framework for analysis — the one formalized and named by Hart and Sacks. All of these thinkers, moreover, have tried to answer the same puzzle: how to recognize Congress’s pride of place in statutory decisions while also accepting that Congress typically makes no actual decision on the hard questions that occupy judges and law professors.
Part I of this Essay briefly traces the thread of intent skepticism through the work of many Harvard judges and law professors. While not every one of these examples displays a thoroughgoing form of intent skepticism, all recognize that statutory meaning inevitably runs out and that judges must take up where the statute leaves off. Part II sketches prominent examples of normative approaches that Harvard’s interpretation theorists have used to define legislative supremacy and judicial power. Part III then contends that the leading schools of thought in the Harvard tradition do a surprisingly good job of (a) articulating how a preferred approach furthers Congress’s constitutional position without (b) claiming to find Congress’s actual decisions. It also briefly considers some alternatives to the first-order institutional debates that have defined most of those schools of thought.
Before turning to the analysis, let me offer three clarifying statements that lie somewhere between glossary and disclaimer. First, to keep the narrative manageable, this Essay tells the story of statutory interpretation at Harvard mainly through judges who went here and professors who taught here. And because Harvard has remained so active in this field, the need for manageability — really, for triage — has limited the Essay’s focus almost entirely to judges and professors who are no longer active today. Second, like Professor Adrian Vermeule’s Essay on administrative law in these pages, my interest here is primarily analytical rather than historical.25×25. See Adrian Vermeule, Essay, Bureaucracy and Distrust: Landis, Jaffe, and Kagan on the Administrative State, 130 Harv. L. Rev. 2463, 2466 (2017). That is, although it should come as no surprise that many of the prominent figures in this Essay had fairly close connections to one another as Harvard teachers, students, or colleagues,26×26. For example, during his brief time as a student at Harvard Law School, future Dean Roscoe Pound was Professor John Chipman Gray’s student. See N.E.H. Hull, Roscoe Pound & Karl Llewellyn: Searching for an American Jurisprudence 109 (1997); David Wigdor, Roscoe Pound: Philosopher of Law 39 (1974). Future Harvard Law School Professor and Supreme Court Justice Felix Frankfurter, moreover, served as Gray’s research assistant. See Brad Snyder, The House that Built Holmes, 30 Law & Hist. Rev. 661, 671 n.50 (2012). Graduate student (and later-Dean) James Landis took federal jurisdiction with then-Professor Frankfurter, and the two collaborated on scholarship after Landis joined the faculty. See Arthur E. Sutherland, The Law at Harvard 301–02 (1967). Professor Frankfurter also taught Hart, who later taught Sacks. See William N. Eskridge, Jr. & Philip P. Frickey, Commentary, The Making of The Legal Process, 107 Harv. L. Rev. 2031, 2033–34, 2041 (1994) [hereinafter Eskridge & Frickey, Legal Process]. And Justice Scalia was one of at least five Harvard-educated Justices who, as students, took the Legal Process course developed by Hart and Sacks. See William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term — Foreword: Law as Equilibrium, 108 Harv. L. Rev. 26, 27 (1994) [hereinafter Eskridge & Frickey, Law as Equilibrium] (noting that Justices Scalia, Kennedy, Souter, Ginsburg, and Breyer took the Legal Process course while at Harvard).
I offer these examples not in an effort to exhaust all of the connections among Harvard’s statutory interpretation scholars or to establish how one thinker may or may not have influenced the next. To do either of those tasks would require a different kind of Essay. Instead, I offer these examples simply to underscore the obvious fact that many of Harvard’s leading thinkers in this debate had occasions for meaningful interaction with one another through the school. the point here is not to demonstrate causal connections running through their work (as a historian might try to do), but rather to investigate a strong analytical theme that has been a consistent feature of Harvard’s tradition. Third, to state that the institutional theme describes a prominent line of thinking at Harvard is not to suggest that it is the only strain of thought there. But, as you will see, the diverse set of thinkers who subscribe to the institutional theme is an impressive one, as is the degree to which they build on common premises.
The full text of this Essay can be found by clicking the PDF link below.
* Morgan and Helen Chu Dean and Professor of Law, Harvard Law School. I thank Bradford Clark, Daniel Coquillette, Susan Davies, Jack Goldsmith, Tara Grove, William Kelley, Gillian Metzger, Martha Minow, Henry Monaghan, Frederick Schauer, and Adrian Vermeule for their thoughtful comments. I am also grateful for the insightful questions that were asked by faculty and students at the Scalia Lecture at Harvard Law School in March 2017. I thank Alex Miller for outstanding research assistance.