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Abstract

This Article studies statutory interpretation as it is practiced in the federal

courts of appeal. Much of the academic commentary in this field focuses on the

Supreme Court, which skews the debate and unduly polarizes the field. This

Article investigates more broadly by looking at the seventy-two federal

appellate cases that cite King v. Burwell in the two years after the Court issued

its decision. In deciding that the words “established by the State” encompass

a federal program, the Court in King reached a pragmatic and practical result

based on statutory scheme and purpose at a fairly high level of generality.

Cases that cite King might be expected to accept or reject this kind of purpose

move, and to generally be more attentive to matters of interpretation.

The results presented here reveal a dynamic landscape in which federal

appeals courts seem relatively uncommitted to ideological battles over

interpretive principles, notwithstanding the relatively small number of opinions

that contain rhetorical flourishes in this area. Courts freely pursue the best

reading of statutory text through textual and purposive means: linguistic

analysis of the words, contextual readings of multiple statutory provisions and

analysis of the statutory scheme, and evidence of purpose gleaned from textual

and extra-textual sources. While not pervasive, legislative history commonly

guides interpretation. These results hold across cases where text and purpose

conflict and where text and purpose are in harmony. In cases of conflict, the

results also hold across cases that reach results primarily based on text and

cases that reach results based primarily on purpose. Further, given the

opportunity to weigh in on lower court statutory construction debates, the

Supreme Court has remained silent. This Article concludes that it is

normatively desirable that lower federal courts have not embraced the statutory

construction battles in an all-encompassing way. The Article concludes with

the caveat that this research should be revisited to assess the effect of Donald

Trump’s appointments to the judiciary.

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