Last Pre-Argument Thoughts on King v. Burwell

I’ll have more to say after we see the transcript on Wednesday (evidently we will not get same-day audio of the argument), but beforehand I thought I’d offer some final pre-game observations.

1.  We’ll see if any of the Justices ask about standing.  Thus far, there is no sign that any are interested.

2.  To me, the problem in the case is that neither side’s story is compelling.  Petitioners are arguing that Congress intended that subsidies would be available only on state exchanges.  I think that is implausible.  Respondents are arguing that “established by the State” is ambiguous.  That is also not plausible.

Instead, I think what we have is a text that is unambiguous and erroneous.  What is the right response to that?  Some errors of this type (say, a typo that gives the wrong date) would not be followed.  Others would not be followed because of some sort of constitutional avoidance doctrine.  This case falls into neither of these categories.  You could say something like “if this was an error, then Congress must usually be held to the mistake to ensure better drafting in the future.” (The subtext here would be “Don’t use reconciliation to enact major legislation.”)  Or you could say, “if there is an error then it should be disregarded, but the burden is on those alleging that there is an error to prove that there is.”  Maybe the respondents cannot meet that burden here.  These are the right questions, though the answer is not so clear.

3.  I’ll be curious to see if the Justices focuses on remedial questions.  If you want to rule for petitioners, you may want to reassure the uncertain that such a decision will not blow up Obamacare.  Some states will create their own exchanges in response.  Others could (as I have suggested elsewhere) try just delegating their exchange responsibilities to the federal exchange.  The Court could delay the application of its order for, say, six months to avoid chaos when subsidies are terminated in many states.  If Kennedy and the Chief Justice ask a lot about this, then they would suggest to me that they will go against the Gov’t.

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17 Responses

  1. Ken Kelly says:

    The government’s position is that the ACA unambiguously authorizes tax credits in all exchanges. If, however, the law is ambiguous on this point, the culprit is not “established by the State”, but rather “such Exchange” in s1321. The government argues that it is at least permissible to read 1321 as mandating that the Federal government “step into the shoes” of non-electing states when running the backup exchanges. The only question is how to read “such”.

  2. Brett Bellmore says:

    My position is, essentially, that it may have been a mistake, but that, if it was, it’s a mistake that got enacted into law, and is the law of the land. And only the legislature can fix it.

  3. Shag from Brookline says:

    Brett apparently has no idea of the concept of context in statutory interpretation, something to be expected from a self-proclaimed anarcho libertarian who is also a 2nd A absolutist. While ACA could have been more precise, that’s not the same as a mistake. Read as a whole, ACA was designed to provide healthcare that would be affordable. Much has been written about King v. Burwell and the potential of the Court’s decision that might impact life without healthcare. Well, many lives could be impacted based upon a myopic reading of ACA. Brett seems to be salivating for that result.

    • Brett Bellmore says:

      What I have an idea of, is the concept that laws are actually written down, and the words that get written down are what become the law, not some nebulous ‘intent’.

  4. Shag from Brookline says:

    But Brett isolates 4 words out of many thousands of words. Context is not some nebulous intent. Many more words were actually written down in ACA than those 4 words. Brett suffers from political myopia premised on his hatred of everything Obama.

  5. Joe says:

    It is either clear that the text (especially taking it AS A WHOLE — which is how Scalia et. al. says we should) means what the government side is saying or there is reasonable doubt to the degree that there should be Chevron deference.

    The professor’s position therefore to me is “implausible.” If you want to say there is reasonable doubt on what the text says, fine. But, more is said here. As to states delegating, the whole point here is that some — against their interests (and against the interests of the people) — DON’T WANT TO DO THAT. That’s supporting “Obamacare.” (A fictional thing. The term will be helpful if the challengers win since it will continue to be “Obama’s” fault — it’s after all HIS bill. Sure, it was largely created by Senate Dems, but who cares about that? This is ironic when a major point of state rights is supposed to be applying appropriate blame — OBAMA is getting too much of it).

    The same applies to delaying enforcement, something generally not done by the Supreme Court. A lot has been written about this. The Republicans in Congress cannot even agree to continue DHS funding. They are going to work to save “Obamacare”? Really now? I guess maybe if they stick enough poison pills in there.

    Shag provides his usual response to Brett, but he should have bigger game here. The professor here in effect makes this a serious argument. Both sides, you see, have something of a point. Like the fish case, it is something of a close question. No it isn’t.

  6. Shag from Brookline says:

    The professor shows some inconsistencies on posts here and at Balkinization on King and on the fish case. On King, he seems to take a stand on standing rather than what is clear context. (Daily Kos has an excellent Sunday post on King v. Burwell that both the professor and Brett should read.) As to the fish case and in particular Justice Kagan’s dis-scent, on a scale of 1-10, cut bait rather than use the gaff. The point is context, not “con” text.

  7. Gerard says:

    I don’t actually have an opinion on the fish case, thus I don’t think I can be inconsistent.

  8. Gerard says:

    I think reading the statute as a whole makes it clear that the text at issue is an error, but that’s different from saying that is ambiguous.

  9. Shag from Brookline says:

    While Gerard says he has not taken a position, with this post he reminds me of Pres. Truman’s search for a one-armed economist because of his frustration with his economic advisors’ “One the one hand, … but on the other hand ….” I would quarrel with Gerard’s reference to “the text at issue is an error” as that ignores context; but for other provisions in ACA, then perhaps “error” might be more accurate.

    As to standing, I am aware that some in the media have approvingly picked up on Gerard’s posts on that topic. As I commented elsewhere, I question who may raise standing, if at all, at oral argument.

    There is a potential political “perfect storm” brewing with DHS funding extended to next Friday, Bibi’s appearance before Congress AND oral argument in King v. Burwell earlier in the week, all before the Ides of March. It seems clear what the intentions of Congressional Republicans are – and its not Caesar Salad.

  10. Douglas Levene says:

    I’m not understanding why it’s “implausible” that the intent of this language was to compel the states to adopt exchanges. That’s what one of the primary architects of the bill, Prof. Gruber, says its purpose was – or at least, that’s what he said in a couple of unscripted remarks before this became a point of litigation. Since none of the Congressmen or Senators read the bill, and all relied on consultants and staffers to draft and read it for them, I don’t see why Gruber’s evidence isn’t pretty compelling.
    And the way things are playing out supports this interpretation. It’s becoming apparent that if this language is enforced as written and the IRS regs are tossed out, that will put a huge amount of pressure on the states without exchanges to change course and establish exchanges, exactly as Gruber predicted. So I come back to, why is this implausible?

    • Brett Bellmore says:

      It’s ‘implausible’ because they’re concerned that finding any part of a law that lacks a severability clause unconstitutional might just cause Roberts to rethink saving it. And, because, if they uphold the language, and don’t find it unconstitutional, that intensifies pressure to scrap the whole thing.

      Entirely opportunistic, IOW.

  11. Joe says:

    The argument being “plausible” won’t win the day for the challengers, especially if it was an unconstitutional act of coercion that threatened states without a clear statement. This was flagged by some, including an amicus joined by a few red states & is a stronger argument if we take the Medicaid part of the Affordable Care Cases seriously. And, apparently, since only Jonathan Gruber (eventually) knew about it — various blogs provide details here, including from both supporters (the implication they didn’t read the thing or at least knew the alleged “point” of the text here is based on little more than cynical cant from what I can tell) and opponents of the law — the rules weren’t clearly set.

    The text as understood by the government has to be clearly found to be wrong. And, the way to understand what the text says is to look at it in context, especially since it is part of interlocking parts. A lot of effort – including by those at Balkanization where the professor also blogs — been provided to show the government’s position is at least reasonable. If not a lot more.

    I’d add that one of the “fixes” is to allow the states to provide a token delegation to the feds, which would sort of ruin one of the alleged reasons for the text — to pressure the states to have real exchanges, not just a paper one.

  12. Shag from Brookline says:

    With respect to Douglas Levene’s reference to Prof. Grube as architect of ACA, he might take a look at Marcin Matczak’s draft paper “Three types of intention in lanwmaking,” to which a link is provided at Larry Solum’s Legal Theory Blog post of 2/2/15 With Solum’s “Highly Recommended! Download it while it’s hot!” The author makes the point that the draftsman of legislation should not be looked to in determining the intent of the legislature. The paper is not an easy read, although it is relatively short. The author uses terms that perhaps fall more specifically within linguistics than the usual discussions on statutory interpretation. There is an extensive References section. But I was impressed by the fact that Solum was impressed, as he posted it again as his “Download of the Week.”

  13. Shag from Brookline says:

    Brett’s “Reply” to Douglas Levene is so incoherent, no reply is necessary.

    • Brett Bellmore says:

      So, what you’re confessing is, you’ve lost the capacity to parse English? Well, we’re both getting on in years, that tends to happen if something else doesn’t get you first.

  14. Shag from Brookline says:

    Let’s parse this by Brett:

    “And, because, if they uphold the language, and don’t find it unconstitutional, that intensifies pressure to scrap the whole thing.”

    I assume the “they” is the Court, in which case Brett’s reply to Douglas Levene is incoherent.