Saturday, September 26, 2020
Abbe R. Gluck (Yale University), Reading the Findings: Location, Text, Context and Textualism As the ACA Returns to the Court, 130 Yale L.J.F (2020, Forthcoming):
This fall, in California v. Texas, the Supreme Court is being asked to invalidate the entire 2,000-page Affordable Care Act again, along with the ACA's insurance-purchase mandate. This time, the law’s challengers are trying to use a false textualism to implode it. But the challengers’ textualism is not real textualism. The challengers seize on a few words in one subparagraph of the ACA’s statutory findings taken entirely out of their location and context in the law. They now argue those findings are an explicit “inseverability clause” that applies to the statute as a whole and trumps the Court’s longstanding “strong presumption” of severability — meaning that if the insurance-purchase mandate is eliminated, the whole ten-title ACA goes down with it. The challengers argue this despite the fact that those findings are specific to one subsection, of one Part, in one subtitle, of the ten-title law, and also despite the fact that the language they seize on is boilerplate language that Congress has used in scores of other statutes, not for the purpose of severability, but to justify its commerce power. They argue this even though Congress expressly tells us, in the subsection itself and also in the subsections directly above and below it, that the findings are indeed directed at establishing congressional authority under the Commerce Clause.And, they argue this even though, reading the entire subsection literally as they ostensibly would have us do, it would mean that not only the ACA goes down but also the nation’s entire pensions and employee benefits regulatory system — the 1974 ERISA statute — goes down too. And most importantly, they argue that Congress has actually spoken to the issue, even though Congress’s established drafting practices, substantiated by its drafting manuals and examples throughout the U.S. Code, make clear that when Congress actually writes an inseverability clause, it is unmistakably explicit about it and writes with specific language — Congress used none of that language in the ACA. The Court deploys a “strong presumption” of severability because striking down whole statutes is the most destructive of statutory-case remedies. Inseverability is a nuclear bomb. Congress doesn’t hide it in mouse-holes. True textualists wouldn’t go looking for it by implication. There is a burgeoning movement among legal scholars and jurists of all interpretive stripes to better understand how Congress drafts laws. Those developments, this analysis should make clear, are as relevant, if not more relevant, for textualists as for anyone else.