Without the Pretense of Legislative Intent
37 Pages Posted: 6 Mar 2019 Last revised: 9 Oct 2019
Date Written: October 27, 2017
The much-discussed King v. Burwell decision presented the very complexities that make statutory interpretation simultaneously frustrating and fun. How should a court handle an unanticipated issue that arises after enactment? What should a court do when a piece of the statutory text, as written, does not further the statute’s overall policy? What does it mean to be a faithful agent in those circumstances? What inherent powers does a court have to fix statutory problems on its own account?
The question in Burwell was breathtakingly important: whether people in thirty-four states were eligible for the health insurance tax credits that the Affordable Care Act (ACA) relied on to keep healthy people in the risk pool, even as the Act simultaneously gave such people the right to buy health care at no extra cost after they became ill. The problem at issue in Burwell was that, for some reason, Congress made the tax credits available only to those who buy their policies through a specified government clearinghouse — an American Health Benefit Exchange “established by [a] State under [Section] 1311” of the ACA. On its face, that language pretty clearly excludes people who bought their policies through the alternative Exchanges that another provision — Section 1321 of the Act — empowers the Secretary of Health and Human Services (HHS) to establish when a state elects not to set up one of its own. No one seemed to anticipate that so many states — again, thirty-four in all — would elect not to establish Exchanges; it was potentially a body blow to the Act’s success.
The Court divided over whether to read the tax credit provision literally. Despite that provision’s surface clarity, the majority read it to authorize payments to individuals purchasing insurance through any Exchange established pursuant to the Act. In the Court’s view, the Act’s technical definition of “Exchange” introduced a shadow of a doubt about whether Congress had treated state- and HHS-run Exchanges as equivalents for purposes of the tax credit provision. The Court also thought that reading that provision as written would create weird incongruities with many other ACA provisions. Most importantly, reading the statute to make the tax credit unavailable in thirty-four states would directly undermine the legislation’s overall purposes.
In dissent, Justice Scalia cried foul, arguing that there was simply no way to read “Exchange established by [a] State under [S]ection 1311” to cover an Exchange established by HHS under Section 1321. To him, moreover, this odd statute produced just as many incongruities under the majority’s reading as under a more “conventional” reading.
Why start an Essay about the history of statutory interpretation at Harvard Law School with King v. Burwell and the ACA? The case encapsulates themes and concerns that defined the work of many of Harvard’s most prominent judges and scholars who wrote about how to read statutes. The ACA, not to mention the process that produced it, was a mess. If ever a statutory outcome reflected path dependence, it was the one with which the Court struggled in Burwell. Given the incongruities in the statute and the chaotic and closely fought enactment process, one cannot plausibly conclude that Congress decided — that is, formed a “legislative intent” about — the question of whether tax credits should be paid in states in which HHS established Exchanges. And, yet, the Court nonetheless concluded that tax credits must be available through either kind of Exchange because that was the way “Congress meant the Act to operate” and because a contrary reading would not effectuate the ACA “as Congress intended.”
Burwell represents a long tradition of the Court’s taking a hard, even insoluble question and asserting that it has identified what Congress intended to do about that very question. Though the search for legislative intent may include (as in Burwell) consultation of the statute’s background purpose or “general aim,” the Court’s invocation of intent commonly refers to something more ambitious — the premise that interpreters can somehow zero in on “the specific, particularized application which the statute was ‘intended’ to be given” in the circumstances of the case. Or as Judge Posner once wrote, it is an effort “to think [one’s] way . . . into the minds of the enacting legislators and imagine how they would have wanted the statute applied to the case at bar.” On that account, even when Congress has not explicitly answered a question, even when it has sent conflicting signals, or even when it has enacted a policy that seems more than a little bit off, the judge properly asks what Congress intended about the problem at hand and then attributes the answer to the legislature.
In work ranging from legal realism to Legal Process purposivism to the formalist “new textualism,” a long line of Harvard judges and law professors have resisted that intentionalist frame of analysis. In the hard cases that judges and law professors worry about (cases like Burwell), legislative intent is a fiction, something judges invoke to elide the fact that they are constructing rather than identifying a legislative decision. And many Harvard judges and professors have made it their project to separate statutory interpretation from the security blanket of “legislative intent,” replacing it with a less soothing but franker assessment of how alternative approaches allocate power among competing government institutions.
Certainly, human beings routinely attribute intentions to multimember institutions such as sports teams, businesses, and armies. But when the questions get tough, those intentions are constructed, not real. Hence, in the case of statutory interpretation, the challenge is how to decide what should count as Congress’s decision and to determine what creative license judges should have to build upon or repair Congress’s handiwork. Should the Court in Burwell have read the tax credit provision in a way that made the statute more coherent with the general background purposes evident from the overall statutory scheme? Or should it have hugged the seemingly plain language of the most immediately applicable text, as Justice Scalia would have? Each position has a plausible institutional grounding in legislative supremacy and judicial power; neither can claim to capture an actual decision made by Congress on the question at issue.
Though an institutional approach to reading statutes is hardly the exclusive preserve of Harvard judges and scholars, such an approach has pervaded Harvard’s take on statutes for more than half of its two centuries. Having very little material to work with (the Constitution says almost nothing directly), a good deal of Harvard’s legislation scholarship focuses on theories of legislative and judicial power rather than on trying to perfect the search for legislative intent. In particular, a hallmark of Harvard’s contributions to the field has been what Professors Henry Hart and Albert Sacks came to describe as “institutional settlement” — the proposition that fights about interpretation theory are really fights about different actors’ complex institutional roles and relationships. That theme, in fact, has run through the work of Harvard’s realists, progressives, New Dealers, Legal Process purposivists, and modern formalists. Thinkers as far apart in their prescriptions as Dean James Landis and Justice Scalia used the same framework for analysis — the one formalized and named by Hart and Sacks. All of these thinkers, moreover, have tried to answer the same puzzle: how to recognize Congress’s pride of place in statutory decisions while also accepting that Congress typically makes no actual decision on the hard questions that occupy judges and law professors.
Part I of this Essay briefly traces the thread of intent skepticism through the work of many Harvard judges and law professors. While not every one of these examples displays a thoroughgoing form of intent skepticism, all recognize that statutory meaning inevitably runs out and that judges must take up where the statute leaves off. Part II sketches prominent examples of normative approaches that Harvard’s interpretation theorists have used to define legislative supremacy and judicial power. Part III then contends that the leading schools of thought in the Harvard tradition do a surprisingly good job of (a) articulating how a preferred approach furthers Congress’s constitutional position without (b) claiming to find Congress’s actual decisions. It also briefly considers some alternatives to the first-order institutional debates that have defined most of those schools of thought.
Before turning to the analysis, let me offer three clarifying statements that lie somewhere between glossary and disclaimer. First, to keep the narrative manageable, this Essay tells the story of statutory interpretation at Harvard mainly through judges who went here and professors who taught here. And because Harvard has remained so active in this field, the need for manageability — really, for triage — has limited the Essay’s focus almost entirely to judges and professors who are no longer active today. Second, like Professor Adrian Vermeule’s Essay on administrative law in these pages, my interest here is primarily analytical rather than historical. That is, although it should come as no surprise that many of the prominent figures in this Essay had fairly close connections to one another as Harvard teachers, students, or colleagues, the point here is not to demonstrate causal connections running through their work (as a historian might try to do), but rather to investigate a strong analytical theme that has been a consistent feature of Harvard’s tradition. Third, to state that the institutional theme describes a prominent line of thinking at Harvard is not to suggest that it is the only strain of thought there. But, as you will see, the diverse set of thinkers who subscribe to the institutional theme is an impressive one, as is the degree to which they build on common premises.
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