Crashing the Party: How Textualism and Legislative History Can Work Together

Textualists must moderate their distaste for legislative history and acknowledge the role of congressional sources in statutory interpretation—even those they themselves approve of. Doing so would enhance their statutory analyses. Decisions arising from 2016 litigation by hospitals against the U.S. Department of Health and Human Services, culminating in Azar v. Allina Health Servs., 139 S. Ct. 1804, 204 L. Ed. 2d 139 (2019), demonstrate how textualist inflexibility can undermine their own principles. For example, notable advocates of that interpretive school—then-Judge Brett Kavanaugh and Justice Neil Gorsuch—overlooked statutory text, which they so highly prize, in reaching their determinations. Textualists often describe the use of legislative history as akin to picking out friends at a party. But Kavanaugh and Gorsuch showed that textualism is like picking which party to go to! And it didn’t have to be that way. This paper’s review of the well-documented legislative history of the statutory provision scrutinized in Allina shows how it could have been employed for textualist purposes to reach a better result. Since legislative history and textualism can meaningfully work together in statutory interpretation, the time has come to move beyond the debate between both camps and engage in a more pragmatic—and productive—discussion of when and how to use such sources and others like them.