Obamacare: A textualist defense

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Liberals and a bipartisan consensus of jurists and scholars have made a rational case that the Affordable Care Act should be read to provide subsidies to the federal government’s health care exchanges. Greg Sargent provides a helpful summary here. None of this was ever really in doubt to anyone who understood the law, but the preponderance of evidence now should be more than persuasive to the judicious.

Unfortunately, Obamacare’s fate may not just rely on rational or judicious consideration. It may also depend on the mercies of a Textualism.

Textualism, to clear things up, is a school of law which holds that rulings should be determined by the utter caprice of the judge.

This is exactly like every other school of jurisprudence, but with one crucial difference: style. Textualist rulings adhere to strict conventions of formulation and rationalization, which determine how the judge’s preferred outcome is expressed. Recurring features:

  1. Just-so definitions usually signaled by phrases like “plain meaning”
  2. Mind-reading and appeals to intent. However, here Congress is thought to have intended choice dictionary definitions, rather than things reflected in “statements of intent” and “direct context”
  3. Selective contextualization justified with just-so declarations of “relevance”
  4. Argumentation primarily couched as a defense of objective meaning, etymological fidelity, and rationalistic grammar – all of which so-happen to dictate the desired outcome

These features appear selectively, of course, inasmuch as they contribute to the desired outcome. They are not consistently adhered to, but they necessarily appear in a Textualist ruling.

Can the Affordable Care Act’s allies prepare a Textualist defense? Sure – Timothy Jost touches on a few points here:

Section 1311 orders the states to establish exchanges. Congress cannot order the states to run regulatory programs, so section 1321 creates a federal fallback exchange in the event that a state “elects” not to follow the section 1311 order. Section 1321 of the ACA makes the Federal Government’s fallback Exchange the same Exchange (“such exchange”) that the State was supposed to establish under section 1311. Section 1453 defines all ACA exchanges as 1311 exchanges, and 1311 itself defines all Exchanges as being Exchanges established by the State.  Section 1312 makes it clear that all Americans are residents of States that established Exchanges. So the plain meaning of the Act is the opposite of what Michael says it is—all exchanges are exchanges “established by the state” and can issue premium tax credits.

This sort of argument would probably at best flatter the sensibilities of the Textualist adversary who thinks everyone should adopt his style. Men like Associate Justice Scalia will almost certainly be able to declare a contrary “plain meaning of the Act”, and will even quote select words and phrases and appeal to definitions.

Still, Jost’s argument is a better starting position than one that waves around words like “what the authors of the bill intended” — which not only begs for Scalia’s dissent as a matter of principle, but drops into his lap a jumping off point. Matt Bruenig is almost certainly right that even these kinds of tactical considerations will have little bearing on the case’s final outcome. But to the limited extent that they do, the Affordable Care Act’s advocates should stop making unnecessary concessions about “mistaken language” and start putting more effort into a Textualist defense.