Talking Textualism, Practicing Pragmatism: Rethinking the Supreme Court's Approach to Statutory Interpretation

The Supreme Court's general approach to statutoryinterpretation is analytically incoherent. On the onehand, the Court has expressly endorsed "textualism":enforcing the plain meaning (i.e., ordinary usage) of astatute's words, and therefore refusing to consider non-textual evidence unless the language is unclear. On theother hand, the Court has implicitly applied'oragmatism"-reaching the best practical result afterexamining not only a statute's text but also Congress'sintent (as revealed by legislative history), its overallpurposes, precedent, and policy.The two cases upholding the Affordable Care Act (ACA)illustrate this practice of purporting to follow textualism,but then finding seemingly clear words to be ambiguousand consulting a variety of sources to resolve themanufactured ambiguity. First, in King, Justice Scaliamade the unassailable textual argument that an ACAprovision granting tax credits to those who purchaseinsurance on a Benefit Exchange established by "State"meant exactly what it said: one of America's fiftygovernments.

A majority of Justices, however, assertedthat "State" was unclear and could be read as alsoextending to the Federal Government. The Court adoptedthis broader interpretation based on its practicaljudgment that denying tax credits in the thirty-four Statesthat had Federal Exchanges would cause millions ofAmericans to forego buying health insurance, which wouldfrustrate the ACA's main purpose and potentially plungeinsurance markets into chaos. This construction isdefensible as an application of pragmatism, but not thetextualist method the Court claimed to be employing.Second, National Federation concerned the ACA"penalty" for violating the individual mandate to purchasehealth insurance, which Congress had explicitly enactedunder its Article I power to regulate interstate commerce-and not its taxing power. Four dissentingJustices appliedtextualism to conclude that Congress had imposed a"penalty," which has long had a single definition: "amonetary punishment for violating a regulatory law."Because the dissenters and Chief Justice Roberts agreedthat Congress lacked power under the Commerce Clause toregulate inactivity (penalizing the failure to buy healthinsurance), the mandate should have been declaredunconstitutional.

Unexpectedly, however, Roberts joinedhis four liberal colleagues in maintaining that the term"penalty" was ambiguous and could possibly mean "tax"-a word that had always previously been defined as "anenforced contribution to support the government" anddistinguished from a 'venalty." This bizarreinterpretation enabled the Court to reach its desiredpracticalresult of salvaging the mandate under Congress'sconstitutionalpower to tax.To compound the confusion, the Justices routinelyinvoke many specific "canons" of construction, whichfeature malleable standards that can easily bemanipulated. For instance, in National Federation, theCourt cited the canon that statutes should be read, wherereasonable, to avoid constitutional issues in order torationalize its tortured interpretationof 'penalty" as "tax."King and National Federation are merely the mostnotable examples of a pervasive problem: unbridleddiscretion in construing statutes. Unfortunately, theCourt has little practical incentive to change because (1)most statutes are of interest only to a small group, (2)Americans pay little attention to statutory interpretation, and (3) even unpopular individual rulings do not affectthe public's overall high opinion of the Court.Nonetheless, respect for the rule of law and intellectualintegrity should induce the Court to develop a moreprincipled jurisprudence. The optimal solution would befor the Court to adopt and apply textualism as its basicinterpretive approach, to clearly acknowledge whenexceptional circumstances pragmatically persuade it todepart from that approach, and to deemphasize canons ofconstruction.