Halbig and Originalism

One criticism of originalism in constitutional law is that we cannot always determine with reasonable certainty what the Framers of the 1787 Constitution, the Bill of Rights, or the Fourteenth Amendment intended or what the public understood those provisions to mean.  Nonsense, say defenders of originalism.  There is plenty of evidence on what the Constitution meant, and even where there is less we can still pull enough together to give courts guidance.

Halbig pokes a hole in this argument.  At issue is a major provision in the most visible statute passed by Congress in years (if not decades).  And we cannot agree what that provision was trying to accomplish just four years after it was enacted.  Did Congress use subsidies to give states an incentive to set up health insurance exchanges, or was that not the case?  Was there a drafting error, or was this intentional?  If that is unknowable, what are we supposed to do with ambiguous constitutional provisions ratified more than two centuries ago?

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14 Responses

  1. Thomas Colby made a similar point regarding the Federal Marriage Amendment — the meaning of which (particularly, regarding its effect on civil unions) its supporters famously couldn’t agree upon even during the midst of the debate over its passage. The Federal Marriage Amendment and the False Promise of Originalism, 108 Colum. L. Rev. 529 (2008)

  2. Anon says:

    I’m with you. On the other hand, do you think it makes a difference that most originalists regard themselves as textualists, making the question one of meaning rather than purpose?

  3. The Framers of the Constitution deliberated in great detail virtually every clause of the charter, which takes up about 20 pages. The Framers of the ACA held virtually no debate on almost on all but the most important provisions of the omnibus bill, which takes up around 3,000 pages. It shouldn’t be surprising that a bill with so little debate is difficult to find conclusive legislative history on.

  4. Gerard Magliocca says:


    I wouldn’t go that far. Some of the Constitution’s clauses were not discussed much, though they are not ones that come up in modern litigation.

  5. Orin Kerr says:

    What Josh said. I think a better example is the recent Missouri constitutional amendment on computer search and seizure. It’s really unclear what if anything it was publicly understood to do or intended do: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/25/missouri-voters-to-consider-computer-search-and-seizure-amendment/
    If no one knows what it is doing at the time of enactment, it is hard for courts to interpret it based on an original public meaning.

  6. Ken Kelly says:

    The language at issue in the ACA came practically verbatim directly from the Finance Committee bill, S.1796. In that bill, from the Chairman’s Mark, through the Committee deliberations and the Committee Report, it was crystal clear that all “state exchanges” (the dominant label) could deliver tax credits, and that the HHS “backstop” was a state exchange like any other. (See page 11 and pages 14-16 of the Chairman’s Mark).
    The legislative language was also clear: s2225(b)(1)(B) ordered the Secretary to “enter into a contract with a nongovernmental entity to establish and operate the exchanges within the State”, those being the ones specified in s2225(b)(1)(A) that the State had failed to establish.
    For what it’s worth, the CRS summary of S.1796 as well as the CRS comparision the ACA to the HR 3590 also represented S. 1796 and the ACA as the government does.
    Given that not one word of any of this contradicts the authors of the ACA on this question, and that not one single Federal or State legislator has claimed to any court that they understood the ACA any differently at the time of debate, shall we please stop pretending that there is insufficient evidence to assess Congressional intent? If you intend to gut the ACA, please have the decency to do it on the basis of how one would expect a natural-language processing computer program answer the question: “Can exchanges not established a State issue tax credits?”


  7. Ken Kelly says:

    Here is the correct to the Chairman’s Mark for S. 1796:

  8. Joe says:

    The “almost no debate” bit above is risible exaggeration especially as applied to basic aspects (see Ken above) and the “great detail” it also is exaggerated — I have read repeated accounts by historians of the crafting of the Constitution and repeatedly it is noted that various (at times important — including the Bill of Rights and Art. II and III) parts of the document was not submitted to much debate & at the very least there were clauses where important issues were not really talked about much at all. See also, a recent article on the 14A linked at Balkanization. Finally, going by the specific PHRASING of the Constitution, it was submitted to a Committee of Detail and there simply wasn’t that much debate overall once it returned.

  9. Commenter says:

    Your premise is wrong, Gerald. Originalists are unconcerned with what the drafters of a text intended, or, to use your words, “what congress was trying to accomplish.” Instead, originalists focus on the public meaning of the enacted text at the time of enactment. Now, if your argument is that it is impossible reliably to discern the original public meaning of the text of the provisions at issue in Halbig, fine. (Your first paragraph hints at this argument, but the rest of your post seems to abandon it.) I don’t agree with that claim, but at least you would be critiquing originalism as it actually operates rather than an intent-based straw man.

  10. Gerard Magliocca says:

    I thought that was my argument. Legislative intent, of course, is a subset of public understanding.

    • Commenter says:

      True, legislative intent is a subset of public understanding. But it is a very small subset; one that seems (at least to me) to be widely overemphasized in your post and in many others (by other authors) in connection with the Halbig litigation.

      The understandings of professional statisticians, of philosophy professors, of military leaders, and of urban city-council members are also subsets of public understanding. Yet it would be unproductive to probe the views of any of those particular groups about Halbig.

      One other quibble: Your post assumes that there is no discoverable original public meaning of the relevant ACA provisions because scholars and litigants cannot “agree” on a single meaning. But agreement of the kind you allude to is unnecessary for originalism to work. There was a spirited dissent in Helled about what the history showed, supported by four Justices, but that doesn’t mean the majority was wrong or that originalism is incoherent. Moreover, much of the current disagreement is (and I admit this occurs on both sides) results-oriented posturing by persons with a deeply vested interest in how the case comes out. If the same textual puzzle came up in a completely different statute, I think many commentators — particularly, but not exclusively, on the left — would change their tune.

      • Brett Bellmore says:

        “If the same textual puzzle came up in a completely different statute, I think many commentators — particularly, but not exclusively, on the left — would change their tune.”

        In the case of Jonathan Gruber, the tune changed for the very same statute, as a result of different circumstances. So I’d say that’s a given.