Why Legislation Trumps Talking Points

by Carrie Severino

In attempting to defend the IRS rule at issue in Halbig and King, the White House has appealed to the following proposition, allegedly so obvious you don’t need a “fancy legal degree” to understand it: “Congress intended for every eligible American to have access to tax credits that would lower their health care costs, regardless of whether it was state officials or federal officials who are running the marketplace.”

But is the question of intent really that simple? Is it just a matter of “common sense” about what means is best to achieve the self-evident goals of a statute? 

On one level, determining congressional intent is simple, or at least should be. Here is a handy rule used regularly by “fancy” judges and lawyers: If you want to know what Congress’s intent was, look at the law they passed.

I’m being facetious, but that really is the first principle of statutory interpretation. You start with the text. 

And for good reason. Our Constitution establishes a representative democracy, in which, as Judge Griffith put it, “policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges.” 

The way those representatives make policy is not by making floor speeches, discussing the high-minded goals of legislation in press conferences, or making titles that promise great things like “affordable health care.” The way our representatives make policy is by passing laws. So the only legitimate way for our courts to give effect to that policy, rather than substituting their own policy views, is to give effect to the laws as written and passed by Congress

There are a lot of good reasons to stick with the text. One is that its objectivity — anyone can read and understand it – takes much of the guesswork out of planning your life or your business. 

A major reason America has become a successful nation is because we are a nation of laws. If you want to do business here you can be (relatively) confident that the rules of the game are out there and knowable — even if they are often complicated enough to require “fancy lawyers” to understand. Everyone from Mom and Pop to the multi-billion-dollar business prefers to operate in an environment where they can trust that the rules aren’t constantly changing with the whim of those in office. They may not like the rules, but they can plan their actions around them.

The inner thoughts and feelings of each of the 279 legislators who voted for the ACA, on the other hand, are not generally knowable. Many of those legislators may not have actually considered the implications of (or heck, even read) the provisions at issue. Should the law of the land depend on whether Nancy Pelosi did or did not read the bill before she helped pass it? I would hope not, or the ACA is likely not the only American law cast into serious doubt. 

The average American going about his or her daily life can be a lot more confident about decisionmaking if we don’t have to psychoanalyze the entire U.S. Congress in order to know what the laws mean.

Another important reason to stick with the text is that it limits the flexibility of unelected judges to import their own preferred meaning into laws. Trying to make sense of the effluvia from Capitol Hill is a hard enough job as it is if you simply stick with the text. 

Surely even the most conscientious judge may at times allow his or her policy views to unconsciously color the reading of a statute. But giving judges free rein to supplement the text with their view of legislators’ likely thoughts or their (easily cherry-picked) take on the general trend of the floor statements opens the door to importing those views implicitly.  And endorsing a view of statutory interpretation that allows a judge to interpret a law to achieve his “common sense” instinct about what the law ought to have said invites them to make their own policy views of first importance. This is what most of the allegations of “absurdity” in the Halbig and King context boil down to: it just seems wrong that the law would say what it says. Why would anyone vote for such a disastrous policy?

Yet deciding how to best achieve policy goals is the job of the legislator, not the judge. And common sense is decidedly slippery — it is rare that someone on either side of a heated debate does not believe he is backed up by simple common sense. Even more so when we are applying it after the fact — knowing in this case that 36 states would not set up exchanges, something that probably seemed unthinkable at the time.

Finally, it makes sense to stick with the text to ensure that Congress takes its own role seriously. Leaving the laws vague and letting the courts or regulators make the hard choices is tempting for someone who has to run for office regularly and doesn’t want to make enemies.  Why not just demand “affordable care” and let someone else take the hit for how it ultimately plays out? 

If legislators think that the regulatory agencies or judges will be able to clean up their messes, they have no incentive to do the job we elected them for. They are the ones who are supposed to be studying the policies they are voting on and making sure they will work correctly before blithely inserting them into the US Code and requiring the rest of us to live by them. A bit more circumspection ex ante would be a healthy development in our legislative process.

I’ve said sticking to the text should be simple. Congress has in this case enacted some serious sausage with the ACA so it’s no surprise that there are internally inconsistent and confusing provisions hidden in its 900 pages. But that’s no reason to give unelected regulators and judges the enormous power of rewriting that behemoth.  We need to take Congress at its word and give it the opportunity to fix the laws itself.  As the Constitution intended.

Bench Memos

NRO’s home for judicial news and analysis.