Vanderbilt Law Review


Benjamin Raker

First Page



In the latter half of the twentieth century, Congress drafted a law to solve a problem. As decades passed, that problem became increasingly complex. In the new millennium, Congress became increasingly polarized, and increasingly unproductive. In the face of that inaction, the executive branch decided to rely on a provision of that earlier law to address a modern facet of that earlier problem. Or litigants decided to ask a court to rely on a provision of that earlier law to address a modern facet of that earlier problem. The Congress that drafted the law might not have understood this modern application, the law's legislative history might be vague and confusing, and this modern interpretation might have important consequences for the overall evil that the earlier law was meant to remedy. What's a court to do? This issue-what to do when the broad purpose of the law is evident, but the applicability in a particular scenario is less than clear is an increasing problem that the Supreme Court will address in coming terms. An example of seemingly clear purpose in the midst of confusing legislative history confronted the Court in King v. Burwell. King is a striking example of this issue because the litigation did not revolve around an obscure provision of a decades-old law, but rather on an obscure provision of a less-than-a-decade old law. Yet the contentious nature of modern legislating still left a confused record regarding the applicability of a particular provision and left the Court with a choice: effectuate the broad purpose of the law, or hold the drafters to their words. This Note will address this issue through the lens of a topic less controversial than the Affordable Care Act: an obscure jurisdiction stripping provision of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). Specifically, this Note will propose that judges read a word entirely out of CERCLA, just a the Court read four words out of the Affordable Care Act. In doing so, this Note will highlight, and question, three possible reasons for such a drastic remedial reading: (1) that Congress has failed to fix the statute and, as such, judges must do so; (2) that judges should read statutes differently when presented with a "major question"; and (3) that judges should employ such drastic remedial reading when the intent of the legislature is particularly clear.