Title: Imperfect Statutes, Imperfect Courts: Understanding Congress's Plan in the Era of Unorthodox Lawmaking
Abstract: In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined--to say what the law is. Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan. --King v. Burwell, Chief Justice Roberts's opinion for the Court Statutory interpretation often seems like a doctrinal and jurisprudential abyss. We didn't need Obamacare to show us that, but it sure helped. The Court's statutory cases over the past decades have had the feeling of being one-offs: the Court seems to careen from case to case, wielding literally hundreds of interpretive presumptions that have no hierarchy among them, no link to Congress, and that seek to impose a coherence and simplicity on modern statutes that those statutes cannot bear. It is nearly impossible to predict which of these presumptions--the so-called canons of construction--will control the next case. The Court's dominant theorists, its textualists, defend these doctrines on the ground that Congress is incomprehensible and so these rules and a laser focus on text are the best that courts can do. And yet no modern court is going to read a thousand-page statute cover-to-cover. Sometimes the cases focus on a single word; it can feel like a game even though the stakes are incredibly high. These moves have been grounded in a spectacular lack of theory about the role that courts should play in the legislative process itself--which is, after all, the fundamental constitutional question of the Court-Congress relationship in statutory cases. (2) Should courts try to understand how Congress works, or is Congress too complex to understand? Should courts be tough on Congress, perhaps to incentivize Congress to draft better the next time, or should courts cut Congress some slack, and even correct enacted imperfections? Perhaps courts are best conceived as guardians of the U.S. Code, obligated to shape increasingly imperfect statutes into a more coherent product for the public, no matter how disconnected that result may be from Congress's own intentions. The Court has long resisted definitively answering these basic questions, even as the most difficult statutory cases turn on them. Into this gulf came King v. Burwell, (3) the challenge to the Affordable Care Act (4)(ACA) that teed up like no other case the questions of the Court's role, capacity, and vision of Congress in an increasingly complicated statutory landscape. King required the Court to consider a potentially fatal imperfection in a 2700-page statute that passed after years of debate but used an unorthodox pathway through Congress that deprived the Act of its expected opportunity for cleanup. The case was viewed as a major test for textualism, and both parties briefed it using that interpretive framework. Both argued that text and canons of construction supported their respective positions--even as those doctrines rest on an unstated and, for the ACA, inappropriate model of how Congress functions: they assume that Congress drafts to perfection and follows the textbook legislative process. But make no mistake: King was also the challengers' attempt to use the Court's preference for this text-and-canon approach, with its associated reluctance to delve into legislative complexity, to make the Court a pawn in a game of rough politics. The case's architects sought, as they put it, to exploit[] four isolated words in a 2700-page monster filled with contradictions and incongruities to work a do-over of their failed 2012 constitutional challenge. (5) It was an effort to pull the statute apart by concentrating on bits and pieces of the law, (6) the instantiation of what Professor Thomas Merrill wrote in 1994 was the then-newly ascendant theory of textualism's greatest risk: converting the Court's role to answering a clever puzzle, masking in neutral-sounding interpretive presumptions a deeply unforgiving view of Congress. …
Publication Year: 2015
Publication Date: 2015-11-01
Language: en
Type: article
Access and Citation
Cited By Count: 4
AI Researcher Chatbot
Get quick answers to your questions about the article from our AI researcher chatbot