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The formalist project in statutory interpretation, as it has defined itself, has been a failure. That project--typified by but not limited to Justice Antonin Scalia's brand of textualism--has been doomed because even its staunchest supporters have been unwilling to carry it out. The rules that judges employ are too numerous to be predictably chosen. There is no ranking among them. They are not treated as blackletter, precedential law. Even formalist-textualist judges, it turns out, crave interpretive flexibility, do not want to be controlled by other courts or Congress, and feel the need to show their interpretive actions are democratically linked to Congress. What we actually have instead is an approach whose legitimacy depends, in large part, on understanding how Congress works. Establishing the incomplete execution of formalism is a crucial first step in this argument, because the fiction that textualism has been successful in achieving its goals has prevented us from seeing what judges actually want and, in fact, are actually doing. With that understanding, it becomes clear that better judicial understanding of the realities of congressional drafting practice will not only make statutory interpretation practice more legitimate, but also advance the enterprise of what most judges--even formalists--already see their job to be. If formalism originally began as a second-best alternative to understanding Congress, understanding Congress has emerged as a second-best alternative to carrying out the formalist project. After laying this groundwork, this Essay offers ten new rules of statutory interpretation--objective, formalism-compatible rules, but rules grounded in congressional practice. It especially highlights one new rule--the CBO Canon--and then offers nine more, including an anticonsistency presumption and presumptions about different legislative vehicles, multiple agency delegations, dictionaries, and special legislative history. Judges of all interpretive stripes have shown new interest in applying this kind of real-world understanding of the legislative process to statutory interpretation doctrine. The goals here are to explore why that might be the case; to meet some of the objections that have been raised about the use of such evidence; and to offer examples to illustrate the very possibility of what might be, and in some cases already is. [ABSTRACT FROM AUTHOR]

The article focuses on the politics of the litigation, the opinions regarding the legislative process of the U.S. Affordable Care Act (ACA). It mentions that the decision of the U.S. Supreme Court in the case King v. Burwell which challenges the ACA with the vision of the U.S. Congress regarding both the textualism and purposivism. It also mentions that the decision of U.S. Supreme Court of the Marbury v. Madison.

The article discusses health law in the age of the modern regulatory state and also focuses on why health lawyers must be public law lawyers. It reveals how the 2010 health reform Affordable Care Act (ACA) illustrates the need of understanding public-law domain including the U.S. Congress and federal agencies in shaping health law in the U.S. It also mentions that the health law has come from the states, local governments, and the medical profession.

Chevron, the most famous rule of administrative law, is also a central doctrine of statutory interpretation. But Chevron is understood and operates quite differently from most of the other statutory interpretation rules. This Essay explores six such divergences and how they illuminate of some the most important, unanswered questions of the statutory era. First, thirty years of Chevron highlight the enduring puzzle over the legal status of statutory interpretation methodology in general. Chevron is a "precedent;" the remaining statutory interpretation doctrines do not even rise to the status of "law." But second, Chevron's own fate is inextricably tied to these other rules, because Chevron relies on them in its famous two-step test. Critics blame Chevron's manipulability, but arguably the blame lies more with the legal indeterminacy of all of the other statutory interpretation rules upon which Chevron relies. Third, as the Chevron doctrine has evolved, it has become more attendant to the realities of how Congress drafts statutes--realities in which the Court seems wholly uninterested when it comes to the rest of statutory interpretation. Relatedly, the Court shows no shame in acknowledging Chevron's source; the Court created the doctrine. The jurisprudential status of the other interpretive rules, however, remains ambiguous, with the federal courts loathe to admit that they have fashioned a common law of statutory interpretation. Fourth, Chevron, as further developed by Mead, is the one instance in which the Court has explicitly used interpretive doctrine to influence the procedures that Congress uses. Again in contrast, across the rest of the statutory landscape, the Court has refused to enter the sausage factory, continuing to reject the idea that courts should interfere in the lawmaking process, or that how a law is made should affect its interpretation. Fifth, Chevron's evolution has blown a hole through conventional notions of statutory stare decisis, but at the same time the Court now seems afraid that it has given away too much. Today, agency statutory interpretations may displace judicial precedents but, when agencies are not in the picture, the Court hoards power: it gives its own statutory precedents "super" stare decisis effect; is stingy when it comes to interpreting congressional overrides; and won't cede any control over interpretive rules to any other branch. Finally--and this is a shared feature--both Chevron and the rest of the statutory interpretation rules rest on an outmoded, "Schoolhouse Rock!" understanding of Congress and agencies that is no more, if it ever was. Thirty years of Chevron thus reveal a statutory law--landscape in remarkable flux, and a Court making few connections between the closely linked administrative and statutory domains. [ABSTRACT FROM AUTHOR]

"National Federalism" best describes the modern allocation of state and federal power, but it is a federalism without doctrine. Federalism today comes primarily from Congress- through its decisions to give states prominent roles in federal schemes and so to ensure the states' continuing relevance in the statutory era. As a result, many of the most significant state sovereign acts now occur through state implementation of federal statutory law, but we have no law to effectuate this account of state authority. This is National Federalism: nationalism and federalism, simultaneous and in tension-and generated entirely by federal statutes. Unlike traditional federalism, it is neither a constant presence nor an entitlement: rather, it is a feature of federal statutory design. But nor does it have the usual trappings of nationalism, because it incorporates experimentation, variety and state historical expertise-the classic "federalism" values-into national law. State sovereignty remains, even if law does not yet recognize it as such. States pass state legislation, appoint new state officials and hear state-law cases in state courts, all as part of their work to implement federal statutory law, but in many ways autonomous from it. Yet, instead of having Chevron-like doctrines that give implementing states more policymaking discretion; or jurisdictional rules that keep more of these cases in state courts; or choice-of-law regimes requiring that state standards of review and state rules of administrative procedure should apply to the state laws enacted by states legislatures that shape the local implementation of federal law in ways unique to each state-instead of all of that, we have a doctrinal muddle and a Court that does not even see these questions as federalism questions in the first place. This essay develops the account of Congress as our primary source of federalism, and re-situates nationalism within that account. It then assembles a list of fifteen unresolved doctrinal questions that reveal the complexity and importance of federalism's modern statutory domain. [ABSTRACT FROM AUTHOR]