Halbig v. Burwell, the ACA subsidies case, has two competing narratives.  In one version, it is an epic battle between textualism and contextualism.  The statute (says one side) clearly says subsidies are available only for insurance exchanges “established by [a] State” and the federal exchange is obviously not established by a state.  But (says the other side) surely Congress could not have intended a situation in which subsidies were not available on the federal exchange, so to make sense of the statute one should not read it narrowly but with regard to what makes the most sense of Congress’ intent.

Which side you are on depends on whether you pick text or intent.  See this post by Curt Levey: Obamacare Subsidies Rulings: It’s the Theory of Statutory Interpretation, Stupid (calling for a textual approach over an intent approach); compare this post by Rick Hasen: Bad Readers: The Judges that Ruled against Obamacare are Following Scalia Down a Terrible Path of Interpretation (calling for an approach based on the statute’s “purpose” and “looking at the whole statute to make it coherent”).

In the second version, it’s a battle between good and bad textualism — bad textualism being an approach that looks only to a single phrase in a single section, disregarding the rest of the statute and its clear (textual) import taken as a whole.  Which side you are on depends on whether you are a good textualist who looks to the whole statute and its enacting context, or a bad (and perhaps politically driven) textualist who looks to a single phrase in isolation.  See these posts by Abbe Gluckand Neil Siegel.

Which narrative prevails may go a long way in determining the ultimate result.  Narrative (1) might generate a Supreme Court majority for the challengers; narrative (2) likely would cause the Court to shun the case (assuming the en banc D.C. Circuit eliminates the circuit split.)

But I’m interested in a broader point: everyone is approaching this case as an originalist.  Every argument I have seen for allowing federal subsidies depends on the proposition that the Congress that enacted the ACA wanted federal subsidies (with the counterargument being that, even if so, Congress did not make that sufficiently clear in the text).  The debate is between text and intent, or between literal meaning and (original) contextual meaning.

These debates are familiar to constitutional originalists, but they are usually regarded as internal debates among originalists, of only passing interest compared to the larger debate between originalism and non-originalism in constitutional interpretation.  Because Halbig is a statutory case, though, the only question seems to be how to identify the enacting Congress’ prescription.

That is not because non-originalist arguments would be implausible here.  Consider this one: regardless of what the enacting Congress thought of this particular issue (which probably can’t be determined anyway), it’s very likely that the enacting Congress assumed most or all states would create an exchange.  It has turned that a large number of states did not.  So we are in a different world from the enactors, and the law must be made to work for our world, not their world.  As a result, the best outcome is to allow subsidies on the federal exchange without regard to what the enactors wanted.

I would not be surprised if a number of the subsidies’ defenders actually think of the problem in this way.  But that is not the way they argue it.  Why not?  Because for statutes, originalism is the dominant approach, even though we don’t realize it because we don’t use that name.


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