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09/04/2014

Jonah Gelbach on Isolated Textualism and the Halbig Litigation
Michael Ramsey

I've been mostly avoiding much comment on the Halbig (Affodable Care Act subsidies) litigation, on the ground that I don't intend to read the entire Affordable Care Act, but this post is too ill-conceived to pass up.

At Balkinization, Jonah Gelbach (U. Penn. Law School) guest-posts The Methodological Absurdity of Isolated Textualism: Halbig, King, and How Not To Read. His central point is that the plaintiffs' case in Halbig depends on "isolated textualism," that is, reading "one little bit at a time, with no consideration of the rest of the law."  This, Professor Gelbach says, is an approach "that is not just indefensible, but which, outside the particulars of the Halbig and King litigation, no one does defend."

Gelbach provides the following analogy:

To see why, let’s ask what would happen if we applied ... isolated textualism to the Internal Revenue Code generally, by considering how much tax would have been owed by a married couple filing jointly and having $17,000 in taxable income in 2013.

The opening sentence of the U.S. Internal Revenue Code, 26 U.S.C. 1(a), imposes a tax of 15% on the first $36,900 in “taxable income” of married couples who file joint tax returns. ... Using [the challengers'] approach to reading text—one little bit at a time, with no consideration of the rest of the law—the couple owes 15% of their taxable income, and that’s it. 
 
But that’s not the tax the IRS would have sought to collect. To understand why, all you have to do is what any law student taking Federal Income Taxation should learn on day one: keep reading. Subsequent parts of 26 U.S.C. 1 operate jointly to create an additional tax bracket that applies a tax of 10% of the first $17,850 of a married-filing-jointly couple’s taxable income (see this IRS page). Consequently, no one suggests the IRS is behaving unlawfully when it collects less than 15% in taxes from such couples. ...
 
Gelbach supposes this to be a knockdown argument (he has several other similar examples), but I am unpersuaded.  Of course, no textualist suggests that a single textual provision should be read without considering the rest of statutory text.  See Scalia & Garner, Reading Law, pp. 167-169 ("Whole-Text Canon").  And where (as in Gelbech's examples) there is a general rule followed by a direction to treat a specific instance separately, the specific direction is treated as an exception to the general rule (even if it is not expressly so stated).  Scalia & Garner, Reading Law, pp. 183-188 ("General-Specific Canon").
 
In Halbig, the plaintiffs claim that because the health care subsidies are available only on "an Exchange established by the State" they cannot be available on the exchange (healthcare.gov) established by the federal government.  Gelbech faults this argument for not reading the rest of the statute.  But Gelbach's complaint, and his tax code analogies, work only if there is something else in the text of the ACA that contradicts the language on which plaintiffs rely.
 
Maybe there is.  (I haven't read the statute and don't intend to).  But Gelbach in his post does not point to anything.  So I assume there isn't.  And if there isn't, his entire argument falls apart.  The plaintiffs' case doesn't depend on "isolated textualism"; it depends on the propositions that (a) one provision of the statute says that subsidies are only available on state exchanges, and (b) no other provision of the statute says otherwise.
 
That's not to say that the plaintiffs' position is necessarily correct, but I don't see the fundamental textualist flaw Gelbach claims to have uncovered.