The Supreme Court's general approach to statutory
interpretation is analytically incoherent. On the one
hand, the Court has expressly endorsed "textualism":
enforcing the plain meaning (i.e., ordinary usage) of a
statute's words, and therefore refusing to consider non-
textual evidence unless the language is unclear. On the
other hand, the Court has implicitly applied
'oragmatism"-reaching the best practical result after
examining not only a statute's text but also Congress's
intent (as revealed by legislative history), its overall
purposes, precedent, and policy.
The two cases upholding the Affordable Care Act (ACA)
illustrate this practice of purporting to follow textualism,
but then finding seemingly clear words to be ambiguous
and consulting a variety of sources to resolve the
manufactured ambiguity. First, in King, Justice Scalia
made the unassailable textual argument that an ACA
provision granting tax credits to those who purchase
insurance on a Benefit Exchange established by "State"
meant exactly what it said: one of America's fifty
governments. A majority of Justices, however, asserted
that "State" was unclear and could be read as alsoextending to the Federal Government. The Court adopted
this broader interpretation based on its practical
judgment that denying tax credits in the thirty-four States
that had Federal Exchanges would cause millions of
Americans to forego buying health insurance, which would
frustrate the ACA's main purpose and potentially plunge
insurance markets into chaos. This construction is
defensible as an application of pragmatism, but not the
textualist method the Court claimed to be employing.
Second, National Federation concerned the ACA
"penalty" for violating the individual mandate to purchase
health insurance, which Congress had explicitly enacted
under its Article I power to regulate interstate commerce-
and not its taxing power. Four dissentingJustices applied
textualism to conclude that Congress had imposed a
"penalty," which has long had a single definition: "a
monetary punishment for violating a regulatory law."
Because the dissenters and Chief Justice Roberts agreed
that Congress lacked power under the Commerce Clause to
regulate inactivity (penalizing the failure to buy health
insurance), the mandate should have been declared
unconstitutional. Unexpectedly, however, Roberts joined
his four liberal colleagues in maintaining that the term
"penalty" was ambiguous and could possibly mean "tax"-
a word that had always previously been defined as "an
enforced contribution to support the government" and
distinguished from a 'venalty." This bizarre
interpretation enabled the Court to reach its desired
practicalresult of salvaging the mandate under Congress's
constitutionalpower to tax.
To compound the confusion, the Justices routinely
invoke many specific "canons" of construction, which
feature malleable standards that can easily be
manipulated. For instance, in National Federation, the
Court cited the canon that statutes should be read, where
reasonable, to avoid constitutional issues in order to
rationalize its tortured interpretationof 'penalty" as "tax."
King and National Federation are merely the most
notable examples of a pervasive problem: unbridled
discretion in construing statutes. Unfortunately, the
Court has little practical incentive to change because (1)
most statutes are of interest only to a small group, (2)
Americans pay little attention to statutory interpretation,
and (3) even unpopular individual rulings do not affect
the public's overall high opinion of the Court.
Nonetheless, respect for the rule of law and intellectual
integrity should induce the Court to develop a more
principled jurisprudence. The optimal solution would be
for the Court to adopt and apply textualism as its basic
interpretive approach, to clearly acknowledge when
exceptional circumstances pragmatically persuade it to
depart from that approach, and to deemphasize canons of
Pushaw, Robert J. Jr.
"Talking Textualism, Practicing Pragmatism: Rethinking the Supreme Court's Approach to Statutory Interpretation,"
Georgia Law Review: Vol. 51:
1, Article 4.
Available at: https://digitalcommons.law.uga.edu/glr/vol51/iss1/4