The Limits of Reading Law in the Affordable Care Act Cases

Abstract

This essay uses Justice Scalia's dissents in NFIB v. Sebelius and King v. Burwell to explore the nature and limits of his success in leading a movement to tether statutory interpretation more closely to statutory text.

There is something in here to displease almost everyone.

I argue that Chief Justice Roberts was right on the mandate/tax question in NFIB v. Sebelius because the governing law of interpretation called for choice of the constitutionally salvific interpretation over the textually superior one. But Justice Scalia was right about the non-availability of subsidies in King v. Burwell because the law of interpretation did not authorize judicial adoption of the textually inferior interpretation constructed by Chief Justice Roberts.

After examining these two cases, I explain how a form of intentionalism elaborated by Richard Ekins provides a jurisprudentially sounder footing for textualist practice than textualist theory's complete banishment of legislative intent. The law of interpretation changed for the better on Justice Scalia's watch because he led judicial practice closer to the central case of statutory interpretation. That central case -- I suggest, following Ekins -- is intentionalist, not textualist. But this kind of intentionalism in theory looks a lot like textualism in practice.

Keywords: Antonin Scalia, John Roberts, Statutory Interpretation, Intentionalism, Textualism, Richard Ekins, Law of Interpretation