What King v. Burwell Means for Statutory Interpretation

by Chris Walker — Thursday, June 25, 2015@chris_j_walker

This morning I blogged about what the 6-3 decision in King v. Burwell means for administrative law (post here). Part of my conclusion there is that the Court’s decision in King chips away at the bright-line rule-based approach to Chevron deference—an approach Justice Scalia has championed—by reinvigorating the major questions doctrine.

King, however, constitutes a major blow to another of Justice Scalia’s legacy contributions on the Court: his textualist approach to statutory interpretation. If this case is indicative of a general trend (perhaps a big “if,” as discussed below), it appears that contextualism is quickly replacing Justice Scalia’s textualism as the foundation for statutory interpretation.

With respect to the Court’s evolving approach to statutory interpretation, the (over)simplified story I tell the students in my 1L legislation course starts with a description of classic purposivism: the principle that the Spirit of the Law trumps the Letter of the Law. This approach arguably predominated statutory interpretation until Justice Scalia arrived on the scene. Perhaps my favorite articulation of this purposivist view, taken slightly out of context, comes from Citizens To Preserve Overton Park v. Volpe, 401 U.S. 402, 412 n.29 (1971): “The legislative history . . . is ambiguous . . . . Because of this ambiguity it is clear that we must look primarily to the statutes themselves to find the legislative intent.”

Things changed in the late twentieth century when self-proclaimed textualist judges such as Justice Scalia and Judge Easterbrook joined the bench. Over the next quarter century, Justice Scalia hammered away in opinion after opinion (and dissent after dissent) that the text of the statute should be the starting (and ending) point for statutory interpretation, and certainly that legislative intent or purpose should not trump statutory text. His textualism efforts perhaps culminated in 2012 with the publication of his interpretation treatise, coauthored with Bryan Garner, entitled Reading Law: The Interpretation of Legal Texts.

To be sure, purposivist judges continued to resist a strictly textual approach to interpretation, but it’s fair to say that textualism became the predominant approach to statutory interpretation. In recent years, however, the response to textualism seems to be contextualism—that “the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.” This quote comes from Justice Kennedy’s opinion for the Court in Kmart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1998)—and is quoted with approval in Chapter 24 (Whole-Text Canon) of Scalia and Garner’s Reading Law.

But contextualism, in Justice Scalia’s opinion, can result in more than just looking to the whole text and structure of a statute to derive the meaning of statutory language. Instead, it can provide for an end-run on textualism by looking to the context—or purpose—of the statute to adopt an interpretation that conflicts with the plain text of the statute. Consider this excerpt from Chief’s opinion for the Court in King (from page 20 of the slip opinion):

Petitioners’ arguments about the plain meaning of Section 36B are strong. But while the meaning of the phrase “an Exchange established by the State under [42 U. S. C. §18031]” may seem plain “when viewed in isolation,” such a reading turns out to be “untenable in light of[the statute] as a whole.” Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 343 (1994). In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.

In other words, under contextualism, the most natural reading of a statute can be displaced by statutory design, structure, and as Justice Scalia argues at length in his dissent, statutory “purpose.” No doubt the Chief would disagree that he’s abandoning traditional textualism, but Justice Scalia clearly accuses the Court of doing so here. Consider a couple snippets from Justice Scalia’s dissent (from pages 3 and 13 of the slip opinion):

The Court interprets §36B to award tax credits on both federal and state Exchanges. It accepts that the “most natural sense” of the phrase “Exchange established by the State” is an Exchange established by a State. Ante, at 11. (Understatement, thy name is an opinion on the Affordable Care Act!) Yet the opinion continues, with no semblance of shame, that “it is also possible that the phrase refers to all Exchanges—both State and Federal.” Ante, at 13. (Impossible possibility, thy name is an opinion on the Affordable Care Act!) The Court claims that “the context and structure of the Act compel [it] to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” Ante, at 21.

I wholeheartedly agree with the Court that sound interpretation requires paying attention to the whole law, not homing in on isolated words or even isolated sections. Context always matters. Let us not forget, however, why context matters: It is a tool for understanding the terms of the law, not an excuse for rewriting them.

. . . . 

Having gone wrong in consulting statutory purpose atall, the Court goes wrong again in analyzing it.

Now Justice Scalia would no doubt dispute my suggestion that contextualism has replaced his version of textualism. In fact, he basically makes that argument in his dissent (at page 20): “Today’s opinion changes the usual rules of statutory interpretation for the sake of the Affordable Care Act.”

Perhaps he is right that this case presents exceptional circumstances that the Court felt justified departing from Justice Scalia’s legacy textualist approach to statutory interpretation. But I’m not so sure. This isn’t the first case where contextualism seems to be trumping textualism. One of my favorite cases of the Term—Yates v. United States—immediately comes to mind. It is definitely something to watch in  the years to come.

@chris_j_walker

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the Michigan Law Review, Minnesota Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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