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Different ways of criticizing Halbig

I am an agnostic on the question of whether Halbig is correct. Before this week’s decisions, I had been inclined to think that the statute was ambiguous enough that the government could win under Chevron. But I found Judge Griffith’s opinion more persuasive than I expected, and am now undecided as to whether the statute is ambiguous. So I’ve been eagerly reading various criticisms of the decision as I continue to think it through. (Abbe Gluck and Nicholas Bagley are the best sources for criticism I have seen, though there are many others.)

In the course of reading criticisms of the decision, I have noticed several different forms of legal argument, and I think it’s important to distinguish them, since they have different roles in different theories of statutory interpretation:

Mode 1: That’s not what the text says, at least if you read the whole text carefully.

Mode 2: That’s not what Congress actually intended.

Mode 3: That result is absurd — i.e., nobody who supported the statute could have intended that.

Obviously these are non-exhaustive and also overlapping, and one can advance two or all three of them at the same time. But it is still important to keep track of which modes are involved.

For example, Ilya’s previous post is a response to a mode 3 argument (cooperative federalism programs aren’t absurd). Abbe Gluck’s rejoinder is a mode 2 argument (this wasn’t intended to be a cooperative federalism program). I understand Neil Siegel to be making largely a mode 1 argument. Many textualists believe that mode 3 arguments can override otherwise clear text while mode 2 arguments cannot, so the difference might turn out to be important to some judges.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).

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