“Textualists” Decline to Cite Inconvenient Text

The premise of the Halbig majority is that if close attention to isolated textual clauses produces an outcome that will cause millions of people to lose health care coverage, “with reluctance*” these people must be sacrificed to the sacred principles of “textualism.” Never mind that your theory of textualism is a terrible one, and this case is a particularly good illustration of this since the theory produces an absurd result inconsistent with what everyone understood the statute to mean at the time — the text must be honored no matter what the costs! We must revere (isolated passages) of the text (neatly severed from the structure and purpose of the statute)!

[*As Matt W. says in comments, mentally read the “with reluctance” passage in exactly the same tone George Costanza says “Oh noooooo — I’m so sorry, it’s “The Moops.”]

Needless to say, this theory has less than no chance of convincing anybody who doesn’t share the fanatical opposition to the ACA of the people who developed it. Fortunately, there’s a remedy for terrible decisions reached by randomly selected panels of appellate judges — the en banc rehearing. And since the D.C. Circuit no longer has a majority of fanatical ideological opponents of the ACA, the outcome an en banc review will result in Halbig being rendered inoperative. The architects of the Halbig litigation are desperate to avoid this outcome, particularly since if there’s no circuit split to resolve the Supreme Court may well decline to intervene. An obvious problem for these “textualists,” however, is that not only do the consequences of Halbig being affirmed mark it as a case of “exceptional importance,” the relevant textual passage of the Federal Rules of Appellate Procedure specifically cites circuit splits as an example of what can constitute the “exceptional importance” that merits en banc review.

So how do the Halbig architects in their deep reverence for textual language deal with this? Brianne Gorod explains:

And there’s a good reason the D.C. Circuit should rehear Halbig en banc, although you wouldn’t know it from reading the brief the law’s challengers filed yesterday.  Funnily enough, these ostensible textualists declined to cite—even once—the text of the rule that actually governs the issue: Federal Appellate Rule 35, which says that rehearing en banc is appropriate when a “proceeding involves a question of exceptional importance.”  The Rule further explains that a proceeding is “of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.”  Sure sounds like the situation here.

In their brief, the law’s challengers try to distract from the governing Rule by pointing to a number of cases in which the D.C. Circuit (and other courts) declined to grant en banc review.  But almost all of the cases they cite are inapplicable, either because they predate the 1998 amendment to the Federal Appellate Rules that explicitly identifies a circuit split as a reason for rehearing en banc, or because they did not involve a situation—like this one—in which the court considering en banc review could have resolved such a split if the full court came out the other way, or both.  The Notes of the Advisory Committee on the Rules—which the law’s challengers also decline to cite—make clear that en banc review is particularly appropriate when it can resolve a circuit split: “If a panel decision simply joins one side of an already existing conflict, a rehearing en banc may not be as important because it cannot avoid the conflict.”  Here, of course, the full D.C. Circuit can resolve the conflict if it agrees with the Fourth Circuit.

Parody is killed again. Now, you might say that this is flagrantly unprincipled. But, to borrow Mark Tushnet’s line, it is simultaneously 0% and 100% principled. Obviously, they don’t really care about their particularly unattractive and unworkable version of “textualism.” The principle of “we must pursue any ad hoc legal theory that has a chance of sabotaging the Affordable Care Act,” though — they’re deeply committed to that one.