Textualism as a Tool for the Destruction of Obamacare

Jeffrey Toobin argues that the Halbig v. Burwell case “is the latest chapter of the legal assault on Obamacare, but it is also the most prominent instance of a larger fight over an ascendant legal theory known as textualism.”

“Scalia and other textualists often assert that their approach drains their judgments of political content: they simply read the statutes, consult a dictionary, and render their verdicts. As the Halbig case demonstrates, textualism is as politically fraught as any other approach to judging. The Halbig case is not an attempt to police unclear drafting but rather the latest effort to destroy a law that is despised by many conservatives.”

“The five appellate judges who voted to uphold the law were originally nominated by Democratic Presidents; the two who voted against it were chosen by Republicans. This reflects the real division over the Affordable Care Act–a political, rather than judicial, conflict. Textualism is not a dispassionate guide to a result; it’s merely a vehicle to a preferred outcome—the destruction of Obamacare.”

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