Ed Whelan’s Statutory Interpretation Revisionism

Over at NRO’s Bench Memos, Ed Whelan takes on my recent Slate piece on the conflicting Obamacare decisions issued this week:

On Slate, law professor Richard Hasen perceives in the D.C. Circuit and Fourth Circuit rulings on Obamacare exchange subsidies “a more fundamental question: Is it the courts’ job to make laws work for the people, or to treat laws as arid linguistic puzzles?” I’d vote for a third option—it’s the courts’ job to say what the law means.

In his broadside against textualism, Hasen complains that “Rigid textualism can lead to harsh results.” It surely can—when the enacted text provides for such results. That’s properly a complaint against legislatures, not against textualism.

To read Whelan (who is a former Scalia clerk and who jumps to Scalia’s defense whenever Scalia is attacked), Scalian textualism is the one true way of statutory interpretation.

Two responses:

1. As Abbe Gluck and others have shown, a full textual reading of the ACA provision does not support the reading that the DC Circuit has given. Good textualism, as Justice Scalia and others have said, requires reading the words of a statute in the context of the entire statute. The reading that the DC Circuit majority gave to the provision at issue renders the other subsidy provisions of the ACA absurd.  At the very least, a full textual reading reveals much more ambiguity than Whelan admits to.

2. There is a very long tradition, which predates Scalia’s narrow textualism, of reading statutes purposefully to effectuate the legislature’s intent. There is another theory, most closely associated with Professor William Eskridge, of reading statutes dynamically over time and in light of current circumstances. Thus, there are at least three separate theories of interpretation which have been used and accepted by courts and commentators over time.  (The four statutory interpretation chapters in my new book, Legislation, Statutory Interpretation, and Election Law: Cases and Materials, discuss and critique each of these theories. Each theory is subject to criticism, including textualism, for leading to rather indeterminate results which often line up with the ideological orientation of the judge doing the interpreting.)

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