Comment by Sean Ross Callaghan
Practitioner; Student | George Washington University Law | Pending Bar Admission into PA & DC
Read the Original Response by Professor Pierce Here
I agree with Professor Pierce that the Court’s application of the Plain Meaning Rule in King v. Burwell is “highly contestable.” Congress has—and should have—the exclusive power to legislate. I posit an ex ante reason that the Court should faithfully apply the Plain Meaning Rule to preserve that power.
A pound of “congressional intent” is outweighed by an ounce of plain meaning. Too much deference to indicia of congressional intent, perhaps counterintuitively, degrades Congress’s legislative power. Congressional intent is notoriously hard to discern because Congress is a Hydra of at least 535 different minds. Especially with a bill passed by such a narrow margin as the Affordable Care Act, congressional intent could be the individual intent of any handful of Congressmen. But for any handful of Congressmen voting for such a bill, the argument goes, the bill would fail, so their intent is Congress’s intent. What of bills passed by coalitions of groups with different agendas—coalitions but for which a bill would have failed? What of bills passed as compromise, such that necessary supporters of a bill actually would have preferred not to vote for it at all?
The Plain Meaning Rule preserves Congress’s most reliable instrument of power. If Congress cannot define a term in a bill like “State” and leave no doubt as to its meaning, but instead, can do all this—and pass a bill—but turn out to have assented to a bill interpreted contrary to its plain language—then Congress risks impotence. Congress’s power is in its words, not its intent. Congress often may be incapable of discernible intent; it can always craft plain language. If the choice is between Congress’s most reliable instrument of power—plain language—and its most unreliable—its difficult-to-discern intent—the Court should prefer Congress’s plain language. That is precisely what the Plain Meaning Rule does: preserve Congress’s most reliable instrument of power.
The Court should prefer Congress’s plain language even when Congress sometimes makes mistakes with it, in the same way a general should prefer his soldiers to fire live bullets even if friendly fire sometimes happens.
The Court in King, as Professor Pierce explains, applied a “highly contestable” version of the Plain Meaning Rule. One could further argue that in King, the Court really just ignored the Plain Meaning Rule altogether. Surely few commentators suppose that the Plain Meaning Rule should be done away with. Yet, the Court articulated no workable principle to limit use of its “highly contestable” version of the Plain Meaning Rule in future cases. The Court’s only gesture at a limiting principle is that where Congress drafts a bill “behind closed doors” and passes it through reconciliation (which cuts off debate), it will relax the Rule Against Surplusage. King v. Burwell, No. 14-114, slip op. at 14 (June 25, 2015). The Rule Against Surplusage overlaps with the Plain Meaning Rule and prohibits, inter alia, reading out words or phrases in a law. Yet, Congress’s very words and phrases are likely the best evidence of its intent if its intent cannot otherwise manifest in floor debate and public hearings. The Court’s gestured-at limiting principle, therefore, does the reverse of what it should: it raises the risk that the Court will rewrite the plain words of Congress contrary to Congress’s actual intent.
Chief Justice Roberts writing for the Court relied on FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). King v. Burwell, No. 14-114, slip op. at 10 (June 25, 2015). Roberts implied that he followed the case; for three reasons, he extended it. First, Brown & Williamson hinged on whether Congress delegated. King hinged on what Congress prescribed. Second, Brown & Williamson, unlike King, declined to rewrite Congress’s law (which Congress subsequently did on its own). And third, in Brown & Williamson, the phrase at issue was “[article] . . . instrument, apparatus, implement, machine, [or] contrivance . . . intended to affect the structure or any function of the body.” The issue was whether that language supplied the FDA with authority to regulate cigarettes. Is a cigarette an “[article] . . . instrument, apparatus, implement, machine, [or] contrivance?” Is it “intended” to affect a “function” of the body? “Reasonable” minds could differ. Though these words have literal meanings—as opposed to a word like “reasonable”—their meaning is not “plain.” Maybe no one uses the word “article” or “apparatus” to refer to cigarettes, but only to refer to functional things like watches or wheelchairs. Maybe “article” or “apparatus” refer only to things that are inconsumable. (Other language supplied the FDA with authority to regulate consumable medication.) Maybe “function” and “structure” are read together to refer to the functions of bodily structures, like walking or eating. Is the purely cellular activity of nicotine such a bodily “function?” Is the Secretary of Health and Human Services a state? No.
King offers at least some comfort. Professor Pierce explains that the chief precedential value of King is that it limits Chevron deference due to the IRS to those matters in which the IRS has expertise—at least when the matter is of deep “economic and political significance.” This is commendable. Chevron first asks whether an agency regulates a matter on which a statute is “silent or ambiguous” and then whether the agency’s interpretation of that statute is “permissible.” No doubt had the Court applied its “highly contestable” version of the Plain Meaning Rule to the two steps of Chevron deference, it would have redistributed Congress’s legislative power to its rival political branch. That would have been worse. Perhaps Chief Justice Roberts is the Solomonic umpire after all. The strike zone in baseball (let’s be honest) is an ex post rule that has never been plain to anyone.
