Justice Breyer staked his position on a textualist vs. a contextualist vs.a hyper-textualist reading of the Affordable Care Act pretty early in oral argument for King v. Burwell, yesterday. He observed: "this statute is like the tax code more than it's like the Constitution," meaning that there are definitions within definitions and interlocking provisions to be parsed before you can say you have read the statute in any meaningful way — a very lawyerly observation indeed.
The significance of this utterance was quickly made clear by his reading of ACA section 1311 and section 1321. But the observation also resonated throughout the entire oral argument as alternative readings of the statutory language proliferated.
What place does hyper-textualism have in statutory interpretation? Once it has staked its place in Constitutional interpretation, should it bleed over into statutory interpretation? And, if it does, what other complex pieces of legislation — far from the ACA — will also be found to be problematic? There's a reason so many amicus curiae briefs were filed in the case that focused on non-health care law concerns.
This the first in a series of posts commenting on yesterday's oral argument in King v. Burwell. Next up: Was That What You Said About Federal Coercion of the States Last Time You Were Here?