|Professor Charles Fried|
former Solicitor General
Fifty friend of the court "amicus" briefs clamor for the attention of the justices of the Supreme Court in King V. Burwell. To be argued next week, it seeks to deny subsidies to people who got their health insurance on healthcare.gov rather than through state exchanges like Kentucky's Kynect. But one brief has particular potential to get the justices attention and win the argument to save the Affordable Care Act as a national institution.
William Eskridge (Yale) joins with former Solicitor General, Massachusetts high court justice, and Harvard Law professor Charles Fried. The alliance of Eskridge (the intellectual godfather of same sex marriage) and Fried (President Reagan's SG and a reliable curmudgeon) should get the attention of the court, packed as it is with Harvard and Yale grads- both justices and law clerks. It's message is plain and is directed to the justice considered most likely to lead the charge against "Obamacare"which he sees as constitutional overreach - Antonin Scalia. Rejecting"purposivism" as granting too much discretion to judges, it embraces Justice Antonin Scalia's battle flag - "textualism":
"textualism is not hyper-literalism, and textualists do not read the words of a statute in a vacuum" say Eskridge, Fried, and three other law professors in their brief.
My New Jersey Law Journal Editorial Board colleague Michael Stein - who drew my attention to it - is predicting Scalia will be persuaded, contrary to conventional wisdom. And the ACA survives intact.
Brief of William Eskridge, John Ferejohn, Charles Fried, Lisa Manheim and David Strauss
Summary of Argument (excerpted)
The court of appeals held that the Patient Protection and Affordable Care Act (ACA) does not prohibit the Internal Revenue Service (IRS) from providing tax credits to individuals who purchase health insurance on exchanges created by the Department of Health and Human Services (HHS). Petitioners challenge that conclusion on the sole ground that seven words in 26 U.S.C. § 36B— “established by the State under section 1311”— foreclose tax credits on HHS-created exchanges. The text, they say, is clear, so by holding otherwise, the court below elevated statutory purpose over statutory text.
But this is not, as Petitioners suggest, a case about textualism vs. purposivism. It is a case about good textual analysis vs. bad textual analysis. Textualism does not require courts to read statutory provisions in a vacuum. To the contrary, it is a “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (internal quotation marks omitted). By focusing exclusively on Section 36B’s seven words in isolation, Petitioners violate textualism’s core tenets and adopt an interpretation that would nullify the Act as a whole.
I. Modern textualism developed as a response to purposivism, which held that the letter of the law must yield to legislative “intent.” A search for legislative intent, textualists have explained, violates the constitutionally prescribed process of bicameralism and presentment: The only “law” to interpret is the text of a statute passed by both houses of Congress and signed by the president. By combing the legislative history for indicia of legislative intent, moreover, purposivist analysis risks substituting judicial judgment for the judgment of Congress. Thus, by focusing on the text of a statute—rather than on ethereal notions of legislative “intent”—textualism cabins judicial discretion, respects legislative supremacy in the policymaking process, and renders the interpretive process more predictable. But textualism is not hyperliteralism, and textualists do not read the words of a statute in a vacuum.