How did it come to this? What the hell is going on?
The explanation is rooted, I think, in a sort of Know-Nothingism that’s taken hold in some corners of the conservative legal movement. This Know-Nothingism is a cancerous outgrowth of textualism, a method of statutory interpretation to which most Republican-appointed judges now subscribe.
Though I have my quarrels with textualism, its key insight is correct: Close attention to statutory text really is the best way to discern a law’s meaning. As sophisticated textualists understand, however, reading the text doesn’t mean we must ignore what Congress meant to accomplish. To the contrary, as Caleb Nelson (himself a textualist) has explained, “Judges whom we think of as textualists construct their sense of objective meaning from what the evidence that they are willing to consider tells them about the subjective intent of the enacting legislature.”
Yes, staunch textualists resist calls to use legislative history—statements of legislators, committee reports, and the like. They also think it’s inappropriate to invoke a statute’s generic purpose (“Save the whales,” “Protect investors”) to twist its plain meaning. But they still look to a wide array of statutory and contextual evidence to excavate “subjective intent”—to identify the problem that Congress meant to solve and the means it chose to solve it. “A fair reading of legislation,” Chief Justice John Roberts wrote in Obamacare’s last brush with death, “demands a fair understanding of the legislative plan.”
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The Know-Nothing judge, however, like a 1970s French literary theorist, denies we can ever know what Congress really means to do when it passes a law. And why should we care anyhow? Intentions aren’t laws. If assigning the most literal interpretation to a statute’s text subverts what Congress intended, so be it. The Know-Nothing judge consoles herself with the fable that all she’s doing is applying the law. She’s not an activist. You are.
This sort of blinkered Know-Nothingism was on florid display in last week’s arguments before the Fifth Circuit. When Congress repealed the mandate penalty, it left on the books the now-defunct requirement that most everyone “shall” secure coverage. And “shall” is a command to buy insurance, right? As one of the judges said, “The only way to know what Congress intended”—the only way!—“is what they say through their legislation and they left in place the mandatory nature of the mandate.” Her colleague appeared to agree: “Shall” ends the matter. The judges seemed to be edging toward the conclusion that because Congress lacks the power to impose a coercive command, the mandate must be unconstitutional.
This is a silly argument. The notion that a Republican-controlled Congress passed a law in 2017 meant to coerce people into buying insurance is pure fantasy. When the Supreme Court upheld the individual mandate back in 2012, it read the same word—“shall”—to afford people a “lawful choice” to either buy insurance or pay a penalty. When Congress zeroed out the penalty, the natural inference is that Congress meant to leave the “lawful choice” to go without coverage in place.