Over the past week, there’s been an awful lot of chatter about whether Congress really meant to eliminate subsidies from federal exchanges. Most has come from those appalled at the D.C. Circuits’ decision to invalidate the IRS rule. Their tone reflects what Jonathan Chait aptly calls “the kind of stammering, bug-eyed disbelief that occurs when somebody is forced to defend a factual proposition that everybody knows is true.”
Collectively, I think the government’s defenders make a powerful case that Congress didn’t intend to withhold tax credits from people in states with federal exchanges. (Not everyone agrees.) But does it even matter? In some quarters, the answer is an obvious no. The text of the statute is the law, not Congress’s “intent.” This is textualism in high-Scalia mode, skeptical of legislative history and scornful of efforts to plumb what Congress actually meant.
This breed of textualism has a lot of purchase in judicial circles. But it may obscure what’s really at stake in the debate between textualists and intentionalists. As Caleb Nelson (himself a textualist) explained in a terrific and persuasive 2005 paper, “judges whom we think of as textualists construct their sense of objective meaning from what the evidence that they are willing to consider tells them about the subjective intent of the enacting legislature.”
Why might Congress’s “subjective intent” matter? Because language is an effort to communicate meaning. To understand what a speaker means, a listener must ask, “What did the speaker intend to convey to me?” In conversation and in statutory interpretation, the semantic content of a speaker’s words is almost always the best guide to what the speaker means to communicate. But it’s not the only guide. Other evidence can be persuasive, too.
That doesn’t mean there are no differences between textualists and intentionalists. As Nelson explains, “[m]any textualists do impose more restrictions than the typical intentionalist on the evidence of intent that they are willing to consider.” They do so not, in Nelson’s view, because they disagree about the goals of statutory interpretation, but because they think that “judges are likely to make more accurate assessments of legislative intent if they use a relatively rule-like approach (of the sort associated with textualism) than if they conduct a more open-ended inquiry (of the sort associated with intentionalism).”
Why do textualists prefer rule-like approaches? For one thing, making laws ain’t pretty. Statutes are often shaped by awkward compromises. As John Manning explains, “courts risk upsetting a complex bargain among legislative stakeholders if judges rewrite a clear but messy statute to make it more congruent with some asserted background purpose.”
On this view, courts will more accurately capture what Congress meant by ignoring extra-statutory evidence that will systematically mislead them. Will courts sometimes get it wrong by focusing too narrowly on semantic meaning? Sure. But, over time, they’ll get it wrong less often than if they take a more loosey-goosey approach.
Intentionalists, in contrast, think that they’ll better capture Congress’s meaning by consulting a wider array of evidence. I think of this as the Nate Silver rule: just as“[a] forecaster should almost never ignore data,” interpreters shouldn’t ignore evidence that can help make sense of statutory meaning.
That doesn’t mean that all evidence should be given equal weight. An intentionalist might care deeply about text and be skeptical of the evidentiary value of most legislative history. (That’s basically where I come down.) But intentionalists will be open in principle to hearing a wider range of arguments about what Congress really meant to accomplish.
Which brings us back to the exchange litigation. As I see it, the real fight isn’t about whether congressional intent matters. The real fight is over what evidence of that intent ought to count. The challengers have one really good piece of evidence: the “established by the State” language, read in isolation, does support the view that Congress meant to restrict tax credits to state exchanges.
Everything else, to my mind, cuts against them. Congress repeatedly used the “exchange established by the State” language as shorthand for “exchange.” Adopting the challengers’ interpretation would make a dog’s breakfast of other provisions of the statute. If Congress wanted to threaten the states to coerce them into establishing exchanges, wouldn’t it have made that threat clear? And if the governing assumption was that states would be happy to establish exchanges, why would Congress have bothered to make such a threat?
If you’re an intentionalist, you can add to this some straight-up legislative history—earlier versions of the health-care reform bill, the CBO score, the statements of members of Congress or their staff, even the recollections of journalists. Fairly read, I think that history confirms what the rest of the evidence already shows: that when Congress used the phrase “established by the State,” it didn’t mean to withhold tax credits from federal exchanges.
But whatever evidence you consult, I don’t think it’s right—I’m not even sure it’s coherent—to say that what Congress intended has no bearing on the meaning of the statute that it enacted.