David Strauss on Why Textualism is Not a Threat to Obamacare

Read the Statute: the Attack on Obamacare is Wrong

One narrative about King v. Burwell goes like this: diehard opponents of the Affordable Care Act pored over the law and found that, if you take the words of the statute at face value, the ACA will blow up. Those words might have been a mistake, but there they are, and the law is the law. The only escape (on this account) is a kind of plea for mercy: to say that the statute should be read in a way that saves it, even if the words are to the contrary. Some defenders of the ACA have drawn the lesson that a text-focused approach to statutes—the approach that is generally called “textualism” and is today associated with Justice Scalia—is a bad idea generally and that King v Burwell shows why that approach should be abandoned.

Some of this story is right. The litigation is, in fact, the work of diehard opponents of the statute who are trying to blow it up. There is not a shred of evidence that anyone involved in passing the law thought that it contained such a self-destruct mechanism. And there are some problems with Justice Scalia’s textualism. But there is no need to get into those problems in King v. Burwell. On the contrary: This is a chance for textualists to gloat.

That’s because the core textualist claim is that the best guide to what Congress wanted to achieve is the words of the statute, not judges’ speculations about Congress’s intentions.King v. Burwell shows that the textualists are right: This time, at least, the words of the ACA tell you all you need to know about what Congress was trying to accomplish. And what the words tell you is that people trying to blow up Obamacare are simply wrong.

Read more at American Constitution Society Blog