(Bloomberg View) — The Patient Protection Affordable Care Act (PPACA) challenge that the U.S. Supreme Court will consider later this year, and presumably decide in June, could be the biggest case of the year. It will definitely be the most important statutory interpretation case in a long time.
It's tempting, therefore, to depict it as a battle royale between the two leading theories of statutory interpretation that have been fighting it out at the court for the last two decades, known to cognoscenti as textualism and purposivism. I've certainly tended to see it that way, and in a column this week I suggested that two textualist statutory interpretation decisions written by Justice Antonin Scalia might provide a preview of what's coming.
In response to my column, I got polite but insistent e-mails from a range of scholars and legal activists urging me to think again. Although reasoning from different premises, my correspondents agreed on one thing: The PPACA case, King v. Burwell, shouldn't be seen as a conflict between interpreting the text of the statute and interpreting the statute's underlying purpose. Instead, they said, the case is about a conflict between the text of one fragment of the statute taken out of context and the text of the statute taken as a whole.
Is that true? And if it is, does the difference matter? The answer, I think, reveals something striking about how the Supreme Court's ideas of statutory interpretation have been changing in the era of Scalian ascendancy.
It turns out that the Department of Justice lawyers who have been arguing the PPACA case in the federal courts have scrupulously avoided using the language of purpose. Presumably, they are confident they can get the votes of the four Democratic appointees to the court, who are in principle at least somewhat open to the idea of legislative purpose as relevant to statutory interpretation.
To win the case, however, the Department of Justice needs a fifth vote. That vote will have to come from one of the conservatives. And the Department of Justice wants that conservative, whoever it may be, to be able to argue with a straight face that his decision (it has to be a he) depends on the text of the statute and not its purpose.
In other words, for reasons of tactics, Barack Obama's Department of Justice is conforming to a conservative view of legal doctrine and actively avoiding what might be the most compelling argument in favor of its interpretation of the statute.
