1. Agenda for 8th Class Handouts Slides Readings (none) Name plates
Lunch sign up
Review of Last Class
King v Burwell

2. Assignment for Next Class
Review any questions from today’s assignment that we don’t discuss in class
Review the 1st Writing Assignment
The question
Your answer
No new readings
No new questions to think about
No short papers
No Blackboard Questions

3. Methods of Statutory Interpretation I
Textualism – Courts should look only at text of statute
Should not look at legislative history or purpose
Often thought to constrict judicial discretion the most
But if text is ambiguous, it may not constrain at all
Consider Statute: 18 U.S.C. §924(c)(1). “Whoever, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years…”
How is judge supposed to decide if person who trades gun for drugs has “use[d] a firearm”?
Scalia and O’Connor disagreed, even though both were textualist.
May lead to injustice, if statute drafted poorly
LSD statute discussed in first day of class
Textualist would say “let Congress fix it”
But Congress is slow and often doesn’t amend statutes 3 3

4. Statutory Interpretation II
Intentionalism – Courts should try to figure out what the legislature intended
Should look at legislative history, where informative
Often thought to allow judges to do whatever they want
Judges Leventhal and Wald: using legislative history is like “looking over the crowd and picking your friends”
But, if text is ambiguous and legislative history is clear
Legislative history can constrain judges
Rodrigues & Weingast
Looking to intention of pivotal voters
Constraints judges
Facilitates passage of statutes by assuring moderates that their views will be respected 4 4

5. Statutory Interpretation III
Purposivism – Courts should try to figure out the purpose of the statute and then interpret ambiguous parts of the statute to further that purpose
Purposivism is distinct from textualims and intentionalism if judges infer purpose from sources other than text or legislative history
Purpose may be public good, even if statute is actually just interest group deal
Lots of discretion to judges
What is purpose of Title VII?
To help African Americans and women in workplace? (Brennan)
To establish a non-discriminatory, color-blind society? (Rehnquist)
To help African Americans and women in workplace while protecting management prerogatives? (Dworkin)
Does purpose have to be consistent (explain) all statutory provisions?
Is first purpose above consistent with protections for seniority? 5 5

6. Statutory Interpretation IV
Pragmatic interpretation -- Judges should take into account real-world consequences
Gives judges lots of discretion
Only plausible where statutory language is ambiguous or silent
Most lawyers and judges use all 4 methods
Try to show how all 4 methods can support desired conclusion
Textualism is probably most influential method today
Influence of Justice Scalia
Usually best to start with textualist analysis
Many judges will only consider intentionalist, purposivist, or pragmatic arguments if the text is ambiguous
Or, perhaps, if text was the result drafting mistake 6 6

7. King v Burwell
§36 of Affordable Care Act authorizes tax credits if an individual enrolls in an insurance plan through an “Exchange established by the State…”
Under Affordable Care Act
Some states established their own exchanges (websites to purchase insurance)
Other states did not establish exchanges, but let the federal government do so
Is an exchanged established by the federal government “an Exchange established by the State”?
Are individuals in states in which the federal government set up the exchanges eligible for tax credits?
Roberts + 5 “yes”
Scalia + 2 dissent

8. King v Burwell Qs I
1. Is the majority opinion textualist, intentionalist, or purposivist? If the opinion’s argument and evidence satisfy none of the three theories or methods of statutory interpretation fully, but combine features or moves of all three theories or methods, is the combination or blend defensible?
2. Chief Justice Roberts states, “We begin with the text of Section 36B.” Is that true? How does his opinion actually begin and why?
3. Was the inclusion of the words “established by the State” a drafting mistake? That is, do you think whoever wrote the statute included those words by mistake? If so, how should a court interpret a statute that contains a drafting mistake? Justice Scalia states that “If Congress enacted into law something different from what it intended, then it should amend the statute to conform to its intent.”  Is that a good argument?
4. Chief Justice Roberts never cites legislative history, such as debates in Congress or Committee Reports. Why not? Do you think the legislative history would support the majority opinion or the dissent?

9. King v Burwell Qs II
5. How does Chief Justice Roberts know that the purpose of the coverage requirement and tax credits is to prevent adverse selection?
6. Justice Scalia argues in dissent that if the majority is correct that “making tax credits unavailable in States that do not set up their own Exchanges would cause disastrous economic consequences there, [then] wouldn’t one expect States to react by setting up their own Exchanges? And wouldn’t that outcome satisfy two of the Act’s goals rather than just one: enabling the Act’s reforms to work and promoting state involvement in the Act’s implementation?” Do you agree with Justice Scalia?
7. Justice Scalia states, “Our only evidence of what Congress meant comes from the terms of the law, and those terms show beyond all question that tax credits are available only on state Exchanges.” Do you agree with Justice Scalia?
8. Do you agree with Justice Scalia that Chief Justice Roberts decided to interpret the Act the way he did because it is one of his “favorites”? What do you think motivated Roberts, a Republican nominee, to write an opinion upholding the signature legislative achievement of a Democratic president?