Bench Memos

Law & the Courts

Some Observations on King v. Burwell

In the grand scheme of things, the Court’s 6-3 ruling in King v. Burwell is utterly insignificant compared to its radical redefinition of marriage (in its anti-DOMA opinion two years ago and in Obergefell v. Hodges last Friday). That’s so for various reasons, not least that it’s very likely that the political response to a victory for the challengers in King would have deprived the victory of any enduring value. The ultimate battle against Obamacare can and will continue, and it must be won politically and legislatively.

That said, I offer some observations on the Court’s ruling:

1. The Chief Justice’s majority opinion strikes me as a very aggressive exercise of purposivism, of rewriting a legal text to comport with its supposed purpose. That quality is suggested by the Chief’s series of strained and seemingly makeshift arguments. But the Chief makes his broad purposivism explicit in this bracing statement in his conclusion (emphasis added):

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.

2. By contrast, Scalia’s textualism, while it allows consideration of purpose, won’t let purpose confer on text a meaning the text can’t bear.

3. Various folks, from George Will on the right to Jeffrey Rosen on the left, misread the Chief Justice’s opinion as resting on a principle of deference. If deference were involved, the Chief would be saying that there is, in the end, more than one reasonable meaning of the contested statutory phrase and that he is deferring to the IRS’s adopted meaning even though it might not be the best one.

But the Chief specifically declines to apply so-called Chevron deference—deference, that is, to an agency’s reasonable interpretation of an ambiguous statute. Nor does he apply any other level of deference. He instead determines what he believes to be the correct meaning of the contested statutory phrase.

It’s empty wordplay to argue, as some have done, that the Chief was “deferring” to Congress’s intent or purpose. One could equally describe Scalia’s textualist approach as “deferring” to the text. The real divide between the Chief and Scalia is not over deference, or judicial restraint, but is instead between purposivism and textualism.

(Judicial purposivism will often have the consequence of ratifying an agency’s interpretation. But that’s because bureaucrats have a strong incentive to be purposivists—in order to escape the apparent strictures of legislation—not because purposivist judges are deferring to the agency.)

4. I gather that many conservatives were immediately inclined to suspect that the Chief Justice was acting not on his best view of the law but from a desire to win favor with the Establishment. As I’ve noted, I think that suspicion is very difficult to reconcile with his strongly worded dissent in the marriage cases. Further, as Orin Kerr points out, the Chief Justice’s approach in King v. Burwell seems broadly compatible with his confirmation testimony about his approach to statutory interpretation. Although I’d be interested in a more thorough analysis of his decisions and votes, my own impression is that the Chief has often displayed a much more freewheeling approach to statutory interpretation than Scalia has. (Last year’s decision in Bond v. United States is one example that comes to mind.) 

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