Some Subtle Textual Arguments in King v. Burwell Addressed to Justice Scalia

In  a previous post I set forth the three statutory provisions that are under consideration in King v. Burwell and described the powerful constitutional arguments that were asserted by the federal government in support of the proposition that federal subsidies for health insurance under the Affordable Care Act are available to citizens in every state. These constitutional arguments were addressed to Justice Kennedy (who is committed to Federalism) and Chief Justice Roberts (who follows a pragmatic approach to legal interpretation). In this post I cover the more subtle textual arguments that were addressed to Justice Scalia.


Justice Scalia is justly acknowledged as the leader of the school of "New Textualism" -- a judicial philosophy that above all prizes objectivity in the law and that assumes that the most principled way to achieve it is a literal approach to statutory interpretation. Justice Scalia has faith in words -- that the written word means what it says and says what it means. He is deeply suspicious of other interpretive techniques. He is particularly dismissive of methods of statutory interpretation that seek to determine the "purpose" of a law and align the words with the purpose.

The weakness of purely textual approaches to legal interpretation is that words do not precisely correspond to things that exist in the real world. Instead words are metaphors; aside from Proper Nouns, spoken or written words not denote specific objects in the world but rather refer at best to entire classes of objects or activities; words refer to categories of things that are usually undefined at the margins. Complicating the task of the legal textualist is the fact that the law is intended to regulate infinitely complex and variable occurrences of human conduct and human interaction. A final consideration for the textualists is that many legal terms represent abstract concepts - that law itself is an abstraction.

In short, words of law, in and of themselves, are often but vague indicators of how we must behave towards each other. Legal text must be illuminated by evidence of intent -- what the drafters and adopters of the law intended for those words to mean in myriad situations. In oral argument in King v. Burwell Solicitor General Donald Verrilli made a number of subtle yet powerful arguments that just might persuade Justice Scalia that his "plain meaning" approach to interpreting the Affordable Care Act is inadequate. Or these arguments may convince a jurist who is less devoted to textualism -- such as Justice Kennedy or Chief Justice Roberts -- that Justice Scalia's literal approach is not determinative in this case, and that a pragmatic interpretation is more appropriate.

Here are the textual arguments that Donald Verrilli made.

1. Term of Art

As noted in the previous post, Section 1401 of the Affordable Care Act calculates the amount of the federal subsidies for health care by referring to the amount of the monthly premiums for a policy that a taxpayer or his family "enrolled in through an Exchange established by the State under 1311 ...." During oral argument Justice Scalia repeatedly asserted that this provision of the statute was clear and unambiguous; that it means that subsidies are available only in the 16 states that established their own exchanges under Section 1311, and not in the 34 states where the federal government established "such exchange" for those states under Section 1321.

Solicitor General Verrilli crafted an argument -- an elegant argument -- suggesting that the phrase "established by a state under 1311" is susceptible of two meanings; one in "dictionary" English and the other in the law.

To a layman, Section 1401 is clear. An Exchange that is "established by a state under 1311" can only mean an Exchange that a state establishes by itself under Section 1311. But lawyers and judges are taught to beware of layman's terms and dictionary definitions. The law is crammed with "terms of art" -- words that mean one thing to the average person and another thing in the law. No layperson could guess at the meaning and legal effect of the term "contributory negligence," and no lawyer can afford to be ignorant of it.

Other legal terms of art are susceptible of multiple meanings, but no-one would rationally suggest resolving a case that turns on these words by looking them up in a dictionary. For example, what is "prima facie evidence" in a civil or criminal case? Does such evidence raise an inference, create a presumption, or compel a verdict on the point in question? Or what is "final agency action" from which a party may take an appeal under Section 704 of the Administrative Procedure Act? Does it include an agency's failure to promulgate a regulation or investigate a violation of the law? We might look to intent or precedent or tradition or policy to resolve the meaning of these terms, but no-one pretends that their meaning is "plain" or that such cases can be resolved by reference to a dictionary or by what these terms would mean to the average person.

Here is Verrilli's argument regarding "established by the State under 1311" as a term of art:

GENERAL VERRILLI: [W]herever this provision appears in the Act, "established by the State under Section 1311," it's doing work; and the work it's doing is saying, what we're talking about is the specific Exchange established in the specific State as opposed to general rules for Exchanges. If you look at the Medicaid Maintenance-of-Effort provision that -- it works the same way.JUSTICE JUSTICE ALITO: Well, why didn't they say "in the State?" That's the phrase you just used, "in the state." Why didn't they say "in the State"?
GENERAL VERRILLI: Because -- I suppose they could have, but it worked perfectly well this way. If you look at the qualified individual provision , it's clearly how they're using it with respect to the qualified individual provision. And with respect to that provision, it says a qualified individual is a person who is located -- who resides in the Sate that established the Exchange. Clearly, what they're talking about is a geographical reference to the particular State. That's what's going on there and what's going on every time the -- the statute uses that phrase. So it's doing that work, and that's why it's in there. (Trans. of Oral Arg., 61-62)

This was a beautiful way of explaining a "term of art." Terms of art do work! They are used because they work! The job of legislatures is to enact language that works and the duty of judges is to interpret that language so that it does the work that the legislature intended.

Why is this argument important? It is because (at least for Justice Scalia) all of the other arguments hinge upon it. For Justice Scalia, if the meaning of statutory language is clear, that is the end of the matter. Judges need not and cannot invoke other aids to statutory construction unless that language is susceptible of more than one interpretation.

Do principles of Federalism and the canon of Constitutional Avoidance drive us to the conclusion that federal subsidies should be made available to citizens of all the states? The canon does not apply unless that statutory language is ambiguous. Must the courts look to the statute as a whole to interpret one provision of the statute? Not unless that provision is ambiguous. Do administrative agencies have the discretion to interpret the meaning of the statutes that they have the duty to enforce? Only to the extent that interpretation of the statute is "reasonable." By casting the disputed language in Section 1401 as a "term of art" Solicitor General Verrilli could at a minimum contend that Section 1401 is ambiguous, bringing all of these other interpretive principles into play.

2. "Such Exchange"

General Verrilli extended his textual argument by pointing out that under Section 1321 entitled "State Flexibility in operation and enforcement of Exchanges" if a State chooses not to set up an exchange under Section 1311, then the federal government shall set up "such Exchange" -- an Exchange for the State under Section 1311. Justice Scalia responded:

JUSTICE SCALIA: Well, you're -- you're putting a lot of weight on the -- on the -- one word, such, such Exchange. Such -- it seems to me the most unrealistic interpretation of "such" to mean the Federal government shall establish a State Exchange. [I]t seems to me "such" means an Exchange for the State rather than an Exchange of the state. How can the government -- federal government establish a State Exchange. That is gobbledygook. You know, "such" must mean something different.
GENERAL VERRILLI: It isn't gobbledygook, Justice Scalia. ... And what we're saying is that effectively reading 1311 and 1321 together, that is what the statute does. And that is certainly -- that is a reasonable reading of the statute. It is really the only reading of the statute that allows you to be faithful to the text of 1311(b)(1, the word "shall," and to the Tenth Amendment. (Tr. 65-66)

"Gobbledygook" is itself an ambiguous term, is it not? Does it refer to the dry and direct language of the materialistic and literal-minded goblins (e.g., "Griphook") of J.K. Rowling's magical parallel dimension, or the poetic indirections of the kind and impecunious goblins (e.g., "Tears of the Mushroom") of Terry Pratchett's Discworld? But I digress!

3. The Statute as a Whole

There was one other point in oral argument where Solicitor General Verrilli confronted Justice Scalia on textual grounds. Justice Scalia insisted that in interpreting the meaning of a specific provision of a statute the courts look to the statute as a whole for guidance only where the specific provision is ambiguous. General Verrilli disagreed, and contended that the "contextual" or "whole statute" approach is required in every case -- that regardless of the apparent clarity of a single statutory provision in isolation, it is the job of the courts to "harmonize" all of the provisions of a statute. Justice Scalia challenged Verrilli to cite a single case where a court had used the contextual approach to interpret clear statutory language -- and Verrilli was ready:

JUSTICE SCALIA:  But, but ­­ if ­­ if it can only reasonably mean one thing, it will continue to mean that one thing even if it has untoward consequences for the rest of the statute.  No? GENERAL VERRILLI:  With respect to this statute, first, let me ­­ I want to make two points. First ­­   JUSTICE SCALIA:  Answer me in principle.  I mean, is it not the case that if the only reasonable interpretation of a particular provision produces disastrous consequences in the rest of the statute, it nonetheless means what it says.  Is that true or not?
GENERAL VERRILLI:  I think there are ­­there are a couple of limitations on that principle. The first is if what you have is a situation in which the ­­ that creates conflict with a statutory scheme, then the Court's got to do its best to try to harmonize and reconcile the provisions. And secondly
JUSTICE SCALIA:  Well, I disagree with that. You have a single case in which we have said the provision is not ambiguous, it means this thing, but, Lord, that would make a terrible statute, so we will interpret it to mean something else. Do you have one case where we've ever said that? GENERAL VERRILLI:  I think ­­ I think Brown & Williamson is a good example of that.  In Brown & Williamson, the Court said, look, the definition of drug and drug delivery device would actually seem unambiguously to cover tobacco, but when you read that provision in context, and considering the full scope of the regulatory regime, it can't possibly mean that. (Tr. 47-48)

In FDA v. Brown & Williamson Tobacco Co. (2000) the Supreme Court had to decide whether the Food and Drug Administration had statutory authority to regulate the nicotine content of cigarettes. The Pure Food and Drug Act gives the FDA the power to regulate "drugs" and "devices" that are used to deliver drugs into the human body. The FDA contended that nicotine is a "drug" and cigarettes are "devices" within the meaning of the statute. As a matter of "plain meaning" this case would seem to be open and shut. Is there any doubt that nicotine is a "drug"? But the Supreme Court looked to the rest of the statute, the past practice of the agency, and the legislative history of this law and other laws regulating cigarettes, and concluded that Congress did not intend to give the FDA the power to regulate the nicotine content of cigarettes, and accordingly the Court ruled against the agency. Justice O'Connor wrote that opinion for the majority of the Court. Justice Scalia and Justice Kennedy joined that opinion.

In summary -- The case of King v. Burwell like several other cases this term turns upon the conflict between the two interpretive modes of TEXT  and INTENT. But that larger jurisprudential point will be the subject of a later post.