Jonathan Keim comments at NRO's Bench Memos:
The D.C. Circuit’s carefully reasoned decision striking down the IRS’s unlawful tax subsidies in Halbig v. Burwell undermines the administration’s interpretation of the Affordable Care Act (ACA). As I noted before, a three-judge panel of the Court of Appeals for the D.C. Circuit held 2–1 that the IRS had exceeded its authority in issuing a tax regulation that mandated tax subsidies through federal Obamacare exchanges that were not “established by the State.” Judge Griffith wrote the majority opinion, joined by Judge Randolph (who also wrote a separate concurring opinion). Carter appointee Judge Harry Edwards dissented. (The Fourth Circuit issued a contrary opinion today, too. More on that later.).
This case was all about text: What role does the actual language of a statute play when Congress has passed it as part of a complex legislative scheme that, quite frankly, includes bad policy decisions? How much latitude does the government have to re-interpret statutory text in trying to change the policy? And where do courts draw the line between interpretation and distortion? This post will examine how Judge Griffith and Judge Edwards answer those questions.
Judge Griffith took what one might call a “textualist” approach, reasoning from the text and its meaning and rebutting the alternative interpretations. Judge Randolph’s concurring opinion agreed and made the sharper point that an exchange established by the federal government cannot possibly be an exchange established by the state, and that “to hold otherwise would be to engage in distortion, not interpretation.” Judge Edwards, as predicted, took the broadest interpretation of the ACA, relying on a broad understanding of the ACA’s purpose and policy, which he then used to trigger Chevron deference. (Somewhat oddly, Judge Edwards directs most of his fire at the appellants, not the majority opinion.)
Judge Griffith’s majority opinion recognized the relationship between the Constitution and the court’s duty to focus on the statutory text, noting that the Constitution “assigns the legislative power to Congress, and Congress alone, see U.S. Const. art. I, § 1, and legislating often entails compromises that courts must respect.” The only legal instrument that triggers the executive’s responsibility to execute it — a bill that passes both houses of Congress and is signed or acceded to by the president — is the statutory text. Because legally binding compromises can result in the passage of statutory text, the statutory text is the proper focal point for the courts.
Nevertheless, Judge Griffith pointed out what he called a “fork” in the D.C. Circuit’s precedent regarding legislative history. One of those forks includes the traditional rule that if the statutory text is unambiguous, there is no need to resort to legislative history. The other fork, from a case called Sierra Club v. EPA (D.C. Cir. 2008), commended legislative history “to shed new light on congressional intent, notwithstanding statutory language that appears superficially clear.” . . .