Bench Memos

False Dichotomy

On Slate, law professor Richard Hasen perceives in the D.C. Circuit and Fourth Circuit rulings on Obamacare exchange subsidies “a more fundamental question: Is it the courts’ job to make laws work for the people, or to treat laws as arid linguistic puzzles?” I’d vote for a third option—it’s the courts’ job to say what the law means.

In his broadside against textualism, Hasen complains that “Rigid textualism can lead to harsh results.” It surely can—when the enacted text provides for such results. That’s properly a complaint against legislatures, not against textualism.

Hasen would instead have courts function as a roving superlegislature, with “an obligation to make laws work.” That unconstrained conception of the judicial role presupposes that courts are able to look beyond the text to (in Hasen’s phrase) “figure out what Congress intended.” After all, the purported goal is to “make laws work” to achieve “what Congress intended.” But the very notion of some extratextual collective congressional “intent” is a fiction. Ironically, leftist scholars (soundly) criticized the original-intent species of originalism* on this very ground, but they resort to the same flawed ground in defending freewheeling statutory construction (or perhaps I should say statutory revisionism).

With respect to the D.C. Circuit ruling, I’ll note that determining that “established by the State” means established by the State does not strike me as an “arid linguistic puzzle.” Hasen also gives the false impression that the panel did not consult legislative history. In fact, the panel spends more than ten pages (slip op. at 30-41) discussing the legislative history and concludes that “the legislative record provides little indication one way or the other of congressional intent.”

* By contrast, original-meaning originalism (which I explain here) is immune from this criticism.

Update: Hasen has provided a response of sorts, though I don’t think it addresses what I actually wrote.

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