The rule of law depends on judges adhering to the words of the law. Textualism is thus critical to the rule of law. Textualism was cast aside today, and we are all paying the price.
Today’s ObamaCare decision boiled down to a fairly simple question: was the mandate a “penalty” or a “tax”? Congress called it a penalty — not once, but multiple times. But Judge Roberts and the four liberal Justices decided to ignore the plain meaning of the word “penalty,” and redefined it to mean “tax.”
Justice Roberts’s motives for doing this are known only to him. But if he had done his job properly, and interpreted the statutory language according to Justice Scalia’s theory of textualism, we conservatives would be celebrating today. Instead, we bemoan the rewriting of a statute in a manner that radically defines the balance of power between the states and the federal government, not to mention the relationship between the federal government and the individual citizen.
I have argued until I am blue in the face that, whatever the merits of trying to divine unexpressed “intent” in the meaning of words in everyday communication, the rule of law requires that the plain meaning of words govern the interpretation of statutes passed by legislative bodies. As I explained in May 2010:
Unlike most legal interpreters, who are willing to look to indicators of legislative intent in cases where the plain language is ambiguous, Justice Scalia rejects any reliance on legislative intent that is not reflected in the plain text.
Textualism, Scalia argues in his book “A Matter of Interpretation,” is what undergirds the rule of law: “It is what makes government a government of laws and not of men.” As he says: “We are governed by laws, not by the intentions of legislators.” This survey of Scalia’s textualist approach summarizes the philosophy well: “[I]f the law does not mean what it says and does not say what it means, citizens are left at a loss concerning how they should conduct themselves.” Justice Scalia has put it more succinctly: “Once text is abandoned, one intuition will serve as well as the other.”
Textualism is the mode of analysis that Justice Scalia employs in today’s decision, whereas Justice Roberts employs a more touchy-feely sort of analysis, which rejects the plain meaning of the words as mere “labels” that can be rewritten to save the statute’s constitutionality:
It is of course true that the Act describes the payment as a “penalty,” not a “tax.” But while that label is fatal to the application of the Anti-Injunction Act, supra, at 12–13, it does not determine whether the payment may be viewed as an exercise of Congress’s taxing power.
They said “penalty,” in other words, but they didn’t really mean penalty. Roberts expands on the need to ignore those pesky labels:
The joint dissenters argue that we cannot uphold §5000A as a tax because Congress did not “frame” it as such. Post, at 17. In effect, they contend that even if the Constitution permits Congress to do exactly what we interpret this statute to do, the law must be struck down because Congress used the wrong labels. [But] labels should not control here.
Scalia, by contrast, marshals several arguments in favor of the penalty being construed as a penalty — but the one he keeps coming back to is that Congress called it a penalty:
We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.
. . . .
So the question is, quite simply, whether the exaction here is imposed for violation of the law. It unquestionably is. The minimum-coverage provision is found in 26 U. S. C. §5000A, entitled “Requirement to maintain mini- mum essential coverage.” (Emphasis added.) It commands that every “applicable individual shall . . . ensure that the individual . . . is covered under minimum essential cover- age.” Ibid. (emphasis added). And the immediately following provision states that, “[i]f . . . an applicable individual . . . fails to meet the requirement of subsection (a) . . . there is hereby imposed . . . a penalty.”
. . . .
[W]e have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a “penalty.” Eighteen times in §5000A itself and else- where throughout the Act, Congress called the exaction in §5000A(b) a “penalty.”
. . . .
In the face of all these indications of a regulatory re- quirement accompanied by a penalty, the Solicitor General assures us that “neither the Treasury Department nor the Department of Health and Human Services interprets Section 5000A as imposing a legal obligation,” Petitioners’ Minimum Coverage Brief 61, and that “[i]f [those subject to the Act] pay the tax penalty, they’re in compliance with the law,” Tr. of Oral Arg. 50 (Mar. 26, 2012). These self-serving litigating positions are entitled to no weight. What counts is what the statute says, and that is entirely clear.
. . . .
The last of the feeble arguments in favor of petition- ers that we will address is the contention that what this statute repeatedly calls a penalty is in fact a tax because it contains no scienter requirement.
It makes no sense to go on about “legislative intent” as giving meaning to statutory language, when a) the subjective intent of the lawmakers is diverse and unknowable, and b) most of them haven’t even read the words which their intent supposedly infuses with meaning:
[L]egislation cannot be interpreted according to legislative intent because, even in theory, it is often impossible to ascribe a single intent to a set of words that is the product of numerous different intentions. If 60 people vote for a provision, and 30 intend it to mean one thing, and the other 30 intend for it to mean the precise opposite, there is no coherent way to determine a single “intent” behind the text. . . . What’s more, often the “intent” of the legislators is non-existent, as they simply ratify language written by other people without even reading it.
That is why the rule of law requires that the plain meaning of a statute’s words must govern. If Chief Justice Roberts had simply paid attention to this simple precept — if he had simply adhered to Scalia’s principles of textualism and plain meaning — we wouldn’t be in such a dark place tonight.
UPDATE: This discussion is a bit oversimplified. I explore more of the nuances here.