What we fight about when we fight about Halbig.

Austin and I had an exchange a couple of weeks ago where he expressed frustration at all the bickering about Halbig. Some people think the D.C. Circuit got it right, others think it got it wrong. But what does it matter? Halbig isn’t going to be resolved over Twitter. It’ll be resolved in the courts. Isn’t the case right if the courts say it’s right and wrong if they say it’s wrong?

I posed the problem to my colleague and friend Scott Hershovitz, a legal philosopher. As a first cut, he cautioned me against confusing

the relationship between finality and infallibility. The first doesn’t imply the second. An umpire may have the final call as to whether a pitch is a ball or a strike—there’s no one to appeal to—but he can get it wrong and call a strike a ball. Or a ball a strike. The game goes on as if what he said was right. But that doesn’t mean that it was right. It just means that he’s got the authority to decide how the pitch will be treated for the rest of the game.

What’s true for baseball is true for law. I can measure the correctness of a court’s decision with reference to a set of rules, both formal and informal, about how cases are supposed to be decided. When we fight about Halbig, we’re fighting in part about what the application of those rules tells us about the meaning of the ACA.

But only in part. The baseball analogy breaks down when you’re talking about the Supreme Court, which not only applies the law, but also says what the law is. I’m convinced, for example, that the D.C. Circuit panel botched Halbig. But the Supreme Court might someday disagree with me. If it does, I’m sure it will have made an enormous mistake.

Yet how can that be? Chief Justice Marshall wrote in Marbury v. Madison that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” If the law is what the Supreme Court says it is, then how could the Court even get something wrong? Am I just confused?

Back in the 1980s, Richard Lempert wrote a paper (gated) grappling with just this problem. Set aside those rare cases where the Supreme Court commits a logical fallacy or issues a decision so goofy that it can’t be reconciled with any plausible view about the law. Most of the time, Lempert thinks, when we say the Supreme Court got a case wrong, we’re making an argument about the rules the Court should have used to decide the case. Those rules can properly be criticized if they clash with widely shared ethical commitments, whether those commitments are to popular sovereignty, to legal tradition, to basic fairness, or whatever.

As Lempert explains, “the mission of legal criticism … is to integrate … legal norms (which themselves have ethical content) with external ethical ones. Such [criticism] seeks to define what law is by identifying what law aspires to be.” On Lempert’s view, saying that the Supreme Court erred is really tantamount to saying that it picked legal rules that dishonor certain moral, ethical, or political values without sufficient justification—that it could’ve better served those values with a different set of rules.

So when I argue that the D.C. Circuit got Halbig wrong, I’m not just saying that it did a bad job applying the accepted rules of statutory construction (although I think it did). I’m also saying that the mode of interpretation it embraced disserves the whole “government by the people” thing: it’s too woodenly literal, insensitive to statutory context, and indifferent to what Congress actually meant to accomplish. The challengers appeal to the same value, arguing that strict adherence to statutory text will best capture what Congress wanted because courts are too easily misled by other evidence of legislative purpose.

The fight in Halbig is thus a battle about how best to honor the political commitment to representative democracy. That’s a fight worth having in public—and even on Twitter—because the courts have been entrusted to select rules that, among other things, advance the cause of democracy. If the courts pick legal rules that produce outcomes that clash with that commitment—if, in other words, they get it wrong—it’s up to us to say so. Only by holding the courts to account can we hope to get the judges we deserve.


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