Constitutional System Demands Respect Across Branches

Judges need to show this respect in assessing one carelessly worded clause in the Affordable Care Act that is the basis for the Halbig case.

Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg wait for the beginning of the taping of 'The Kalb Report' April 17, 2014 at the National Press Club in Washington, DC.
National Journal
Norm Ornstein
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Norm Ornstein
Sept. 17, 2014, 5:54 p.m.

Ed­ward Cor­win was a polit­ic­al sci­ent­ist who served for dec­ades as the Mc­Cormick pro­fess­or of jur­is­pru­dence at Prin­ceton. He is best known for his phrase about the Amer­ic­an Con­sti­tu­tion as an “in­vit­a­tion to struggle” among the branches (his ref­er­ence was to for­eign policy, but it ap­plied more gen­er­ally). But he was also known as a keen mind and the lead­ing ex­pert for dec­ades on the mean­ing of the Con­sti­tu­tion. He was close to Woo­drow Wilson, and it was said that FDR strongly con­sidered Cor­win for nom­in­a­tion to the Su­preme Court—the first non­law­yer to be so con­sidered—but dropped the idea in part be­cause of Cor­win’s lack of leg­al train­ing.

Learned Hand was a judge who served on the Second Cir­cuit Court of Ap­peals from 1924 un­til 1951, serving as chief judge for a lot of that time. No judge’s opin­ions have been quoted more fre­quently or used as ex­amples more of­ten than those of Hand, clearly the most dis­tin­guished Amer­ic­an judge nev­er to have made it to the Su­preme Court.

Robert Katzmann is the cur­rent chief judge of the Second Cir­cuit. He is both a polit­ic­al sci­ent­ist and a law­yer. His train­ing in both fields—which en­com­passes hands-on ex­per­i­ence across branches of gov­ern­ment, in­clud­ing be­ing a protégé of the late, great Daniel Patrick Moyni­han—along with his ju­di­cial tem­pera­ment, keen mind, and re­spect for the law and for polit­ics, make him the clearest heir to both Cor­win and Hand.

He will blush when he reads this, and it is true that I am his friend and have the bi­as of a friend (and fel­low polit­ic­al sci­ent­ist). But his stature and depth are also evid­ent to all those who have served with him or ap­peared be­fore him. I write about Katzmann be­cause he has writ­ten a new book, called Judging Stat­utes, that is both a tour de force and must read­ing for any­body fol­low­ing a par­tic­u­larly crit­ic­al case, Hal­big v. Bur­well, that I have writ­ten about in this space be­fore, and that may pose the greatest chal­lenge yet to the full im­ple­ment­a­tion and fu­ture of the Af­ford­able Care Act.

The un­der­ly­ing point of Judging Stat­utes is that the Amer­ic­an con­sti­tu­tion­al sys­tem re­quires a deep re­spect among the in­sti­tu­tions of gov­ernance—which in­cludes a re­spect by Con­gress and the courts for the key role that ex­ec­ut­ive branch of­fi­cials play in their front-line role of in­ter­pret­ing the mean­ing and in­tent of the laws Con­gress passes in or­der to im­ple­ment them; a re­spect by Con­gress for the dif­fi­culty of that ex­ec­ut­ive role and for the role of the ju­di­ciary as in­de­pend­ent ar­bit­er; and very im­port­antly, the re­spect of judges for the in­her­ently polit­ic­al nature of Con­gress, and the dif­fi­culty and messi­ness in­volved in build­ing co­ali­tions and passing stat­utes. The lat­ter may be dis­taste­ful and of­ten worthy of ri­dicule, but it is baked in­to the con­sti­tu­tion­al or­der.

As Katzmann notes, from the be­gin­ning the framers un­der­stood that the nature of the le­gis­lat­ive pro­cess would make stat­utes of­ten un­clear and murky for in­ter­pret­a­tion. Madis­on wrote in Fed­er­al­ist No. 37:

All new laws, though penned with the greatest tech­nic­al skill, and passed on the fullest and most ma­ture de­lib­er­a­tion, are con­sidered as more or less ob­scure and equi­voc­al, un­til their mean­ing be li­quid­ated and as­cer­tained by a series of par­tic­u­lar dis­cus­sions and ad­ju­dic­a­tions. Be­sides the ob­scur­ity arising from the com­plex­ity of sub­jects, and the im­per­fec­tion of the hu­man fac­ulties, the me­di­um through which the con­cep­tions of men are con­veyed to each oth­er, adds a fresh em­bar­rass­ment.

It is up to judges fre­quently to judge the mean­ing and im­port of stat­utes that are reg­u­larly sub­ject to more than one in­ter­pret­a­tion—be­cause laws by nature, as Madis­on said, are of­ten ob­scure, equi­voc­al, murky. What to do? Katzmann notes that since the 16th-cen­tury Eng­lish de­cision known as Hey­don’s Case, the dom­in­ant mode has been to look at the pur­pose of the laws, to look care­fully at what the le­gis­lature in­tends, to, in the words of that de­cision, “sup­press the mis­chief and ad­vance the rem­edy.” Learned Hand wrote:

All [le­gis­lat­ors] have done is to write down cer­tain words which they mean to ap­ply gen­er­ally to situ­ations of that kind. To ap­ply these lit­er­ally may either per­vert what was plainly their gen­er­al mean­ing, or leave un­dis­posed of what there is every reas­on to sup­pose they meant to provide for. Thus it is not enough for a judge just to use a dic­tion­ary. If he should do no more, he might come out with a res­ult which every sens­ible man would re­cog­nize to be quite the op­pos­ite of what was really in­ten­ded; which would con­tra­dict or leave un­ful­filled its plain pur­pose.

It is true that it is not al­ways pos­sible to come up with a defin­it­ive in­ter­pret­a­tion of what Con­gress in­ten­ded. One of the most com­pel­ling parts of Katzmann’s book is his ac­count of three de­cisions that went to the Su­preme Court from ap­peals courts, in one of which the judg­ment of Katzmann and his col­leagues on the 2nd Cir­cuit was over­turned, that show the ways in which du­ti­ful judges can come to op­pos­ite con­clu­sions. But in most con­tro­ver­sial cases, there are clear ways to look at le­gis­lat­ive his­tory, the words of a bill’s ar­chi­tects or man­agers, and the over­all body of the law to di­vine the plain pur­pose. And, as Katzmann writes, “At times it is dif­fi­cult to as­cer­tain pur­poses, and the search for pur­pose as to par­tic­u­lar stat­utes, may be elu­sive. But to jet­tis­on the in­quiry al­to­geth­er, be­cause of the dif­fi­culty in par­tic­u­lar cases, means that judges will in­ter­pret stat­utes un­moored from the real­ity of the le­gis­lat­ive pro­cess and what the le­gis­lat­ors were seek­ing to do.” To any­one who has spent time in Con­gress or any le­gis­lat­ive body, who un­der­stands the fun­da­ment­als of the polit­ics of a le­gis­lature, Hand and Katzmann are com­pel­ling.

Even so, there is an­oth­er strain of in­ter­pret­a­tion that has aris­en to chal­lenge this one, closely iden­ti­fied with Justice Ant­on­in Scalia. Known as tex­tu­al­ism, it re­jects the use of le­gis­lat­ive his­tory or the words of law­makers about what they did and in­ten­ded, show­ing dis­dain for much of the le­gis­lat­ive pro­cess and the motives of law­makers but also ar­guing that re­ly­ing on messy and am­bigu­ous le­gis­lat­ive ac­tions and in­ter­pret­a­tions gives judges too much dis­cre­tion to achieve their own de­sired out­comes. In oth­er words, Scalia ar­gues that the text of the law speaks for it­self. Katzmann ju­di­ciously, po­litely, and re­spect­fully dis­sects the case for tex­tu­al­ism, and filets it.

Most im­port­antly, he does so by stand­ing up for the fun­da­ment­al role of the le­gis­lature in our con­sti­tu­tion­al struc­ture. He writes that “wip­ing out le­gis­lat­ive his­tory, in the face of em­pir­ic­al evid­ence that Con­gress views it as es­sen­tial in un­der­stand­ing its mean­ing, leaves us largely with a can­on-based in­ter­pret­at­ive re­gime that may not only fail to re­flect the real­ity of the le­gis­lat­ive pro­cess, but may also un­der­mine the con­sti­tu­tion­al un­der­stand­ing that Con­gress’s stat­ute-mak­ing should be re­spec­ted as a demo­crat­ic prin­ciple.”

Now comes Hal­big, which is based on one care­lessly worded clause in the Af­ford­able Care Act that the law’s op­pon­ents say makes it clear that sub­sidies for in­sur­ance can only be giv­en to those us­ing in­sur­ance ex­changes es­tab­lished by the states—not those es­tab­lished by the fed­er­al gov­ern­ment be­cause states re­fused to cre­ate their own ex­changes. To ac­cept this tex­tu­al in­ter­pret­a­tion would mean the un­rav­el­ing of much of the health care law, with many mil­lions of Amer­ic­ans no longer able to af­ford their in­sur­ance, with risk pools col­lapsing, and a broad­er chaos in the health care sys­tem. There are many oth­er places in the ACA where it is clear that ex­changes refer to all ex­changes, however they were es­tab­lished and run. But most im­port­antly, to ima­gine that the un­rav­el­ing of the law and the re­mov­al of in­sur­ance from mil­lions was what Con­gress in­ten­ded is pat­ently ri­dicu­lous.

But that is the con­clu­sion that two judges on the D.C. Cir­cuit came to. One, Thomas Grif­fith, had served for sev­er­al years as the Sen­ate’s leg­al coun­sel, work­ing closely with Re­pub­lic­an sen­at­ors like Or­rin Hatch and Chuck Grass­ley, who are ar­dent pro­ponents of judges prudently us­ing le­gis­lat­ive his­tory and in­tent to judge stat­utes. Yet Grif­fith still aban­doned con­text and op­ted for a cramped tex­tu­al in­ter­pret­a­tion of the law.

Hal­big will now be taken up by the full D.C Cir­cuit, which will prob­ably join the de­cision reached by a pan­el of the 4th Cir­cuit, say­ing it is abund­antly clear what Con­gress in­ten­ded—and it was to make sure as many Amer­ic­ans as pos­sible got in­sur­ance, not to se­lect­ively deny it to those whose gov­ernors or state le­gis­latures, of­ten for ideo­lo­gic­al reas­ons, de­cided not to cre­ate their own ex­changes. That may mean the Su­preme Court will not hear the case. But if Hal­big does get to the highest court, I hope that all nine justices, even those like Scalia who will not be swayed, will first read this fine and com­pel­ling book, and at min­im­um con­sider what steps should be taken to build a great­er level of mu­tu­al re­spect and comity across the branches.

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