• Sloppy drafting and statutory interpretation

    There’s no getting around it. The ACA contains some sloppy drafting, most conspicuously in the section governing the calculation of tax credits.

    For the most part, that sloppiness reflects the intrinsic difficulty of writing a bill to reform a massive, complex health-care system. Yet the ACA also bears the scars of a brutal political debate. The bill that became the ACA was never supposed to become law. Instead, it was a working draft that, after the Senate and House passed competing versions, was to provide a template for the conference committee, which would amend it and clean it up. But when Senator Kennedy died and the Democrats lost their filibuster-proof majority, the House felt it had no choice but to accept the ACA as written.

    It’s helpful to think of Halbig as a debate over what to make of the ACA’s occasional messiness. Should the courts hold Congress to a literal interpretation of statutory text, however unlikely it is that Congress intended that result, because deviating from the text might upset the deal that Congress struck? Or should they try to figure out what Congress really meant its statute to do, with full appreciation that, sometimes, what Congress meant to convey and what Congress actually said can point in opposite directions?

    Norm Ornstein, as astute an observer of Congress as there is, has a piece up at the National Journal repudiating the cramped literalism on display in the D.C. Circuit panel’s decision in Halbig. In Ornstein’s view, the decision shows insufficient respect for Congress. To make the point, Ornstein draws on a new book by Judge Katzmann of the Second Circuit:

    The underlying point of [Katzmann’s book] is that the American constitutional system requires a deep respect among the institutions of governance—which includes a respect by Congress and the courts for the key role that executive branch officials play in their front-line role of interpreting the meaning and intent of the laws Congress passes in order to implement them; a respect by Congress for the difficulty of that executive role and for the role of the judiciary as independent arbiter; and very importantly, the respect of judges for the inherently political nature of Congress, and the difficulty and messiness involved in building coalitions and passing statutes. The latter may be distasteful and often worthy of ridicule, but it is baked into the constitutional order.

    For Ornstein and Katzmann, showing respect for Congress requires judges to do more than mechanically interpret statutes. “At times it is difficult to ascertain purposes,” Katzmann writes, “and the search for purpose as to particular statutes, may be elusive. But to jettison the inquiry altogether, because of the difficulty in particular cases, means that judges will interpret statutes unmoored from the reality of the legislative process and what the legislators were seeking to do.”

    I’m with Ornstein and Katzmann on this one. It would be nice if Congress crafted perfect statutes. But it can’t. Even with the simplest statute, statutory drafters can’t anticipate and foreclose every possible interpretation that runs counter to their intentions. And the intensity of Congress’s political negotiations inevitably complicates efforts to generate clean statutory text. In this, the ACA isn’t especially unusual. Otto von Biscmark didn’t need to watch the debate over health-care reform to quip that, “[i]f you like laws and sausages, you should never watch either one being made.”

    That doesn’t mean courts can freely disregard statutory text. As I’ve said before and I’ll say again, the job of a judge is to make the best sense of the words that Congress chose. But courts can’t respect Congress’s words without trying to understand what Congress meant those words to accomplish.

    @nicholas_bagley

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