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.