In House of Representatives v. Burwell, yet another big case arising over the Affordable Care Act, U.S. District Judge Rosemary Collyer has ruled that the administration’s implementation of the Act’s subsidy provisions violates the Constitution. Lots of fun here; let’s start with the basics.
For its lay audience City Journal asked me to explain the King v. Burwell decision, which permitted federal exchanges under the Affordable Care Act to receive subsidies. Within its brief compass, I made two points.
First, I suggested, contrary to some conservative commentators, that the majority opinion did not demonstrate that Chief Justice Roberts was unprincipled but that instead the decision followed from a principled purposivist theory of statutory interpretation. I showed why the theory was wrong: like Mike Rappaport, I believe the meaning of the provision was clear and neither purposivist nor intentionalist interpretation should be allowed to defeat a clear meaning. This analysis of Roberts’ opinion comports with my more general view that four justices labeled conservatives are often fractured, because they are more legalists than ideologues, whose different interpretive methods lead to different results that are sound under their principles even when the principles are unsound.
Second, I noted that the effects of purposive interpretation are generally friendly to progressivism because it allows judges to choose overriding purposes that advance progressive goals that were not written into law. But let me be clear that any aid that purposivism gives to progressivism is not a reason to reject purposivism, just an effect of that interpretive method.
Here is an analogy.
It may be proper for me to offer some observations on the Supreme Court’s highly consequential decision in King v. Burwell. At a December 2010 presentation at the American Enterprise Institute in Washington, I explained that parsing Section 1401(a) of the Affordable Care Act, which added Internal Revenue Code Section 36B, revealed something dramatic: The amount of a premium tax credit is always equal to zero under Section 36B unless a qualified health plan is purchased by a member of the taxpayer’s immediate family through “an Exchange established by a State under section 1311 of [the ACA].”
Those of us who believe in the rule of law and limited government are understandably flummoxed by the conclusion of the Supreme Court’s 2014-15 term: in rapid succession, and generally by narrow margins, the Court “fixed” an internal defect in the ObamaCare statute (King v. Burwell); recognized so-called “disparate impact” claims under the Federal Housing Act (Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.); created a constitutional right to same-sex marriage and struck down contrary state laws (Obergefell v. Hodges); and re-wrote the “elections clause” of Article I, section 4 to allow non-legislative redistricting (Arizona State Legislature v. Arizona Independent Redistricting Commission).
Randy Barnett and Ed Whelan have revived the supremacy debate in the wake of the Chief Justice’s opinions in King and Obergefell, with Barnett arguing most recently that judges should be guided by the “constraint” of the text rather than “deference,” both of which he classifies as forms of restraint. Much commends that notion, and the distinction is analytically useful. But in the course of embracing a particular strain of originalism, it finds itself in tension with the original understanding of the judges’ role. Barnett’s standard for judicial nominees is a “proven record of willingness to be constrained by the original…
I am a strong opponent of Obamacare. But once I realized that a decision in King v. Burwell denying subsidies to people who purchase insurance under the federal exchanges would not help the cause of repealing Obamacare and might hurt it, my attitude towards the case changed. I felt much less politically invested in the issue and could more easily view it in an impartial manner.
Thus, I read with a relatively open mind the opinions by Chief Justice Roberts and Justice Scalia in the case. Although I am a formalist (albeit a soft formalist), I do believe that conflicting provisions in a statute can render it ambiguous and that purpose is permissibly used to resolve an ambiguity – two key premises of Chief Justice Roberts’s opinion. But in the end, I concluded that Justice Scalia had the better of the argument by a significant margin.
The following post is written by Bill Levin, a friend and former colleague at the Office of Legal Counsel. Bill has been closely following the King v. Burwell litigation. For his previous posts, see here and here.
How will the Supreme Court rule in King v. Burwell based on last Wednesday’s oral argument?
On Power Line, Paul Mirengoff judiciously concludes that the odds modestly favor the government: an implacable four-vote liberal bloc is potentially joined by a surprise vote from Justice Kennedy, on a theory of constitutional avoidance, plus the risk posed by Chief Justice Roberts, who said nothing one way or the other during oral argument to change the betting line.
An alternative view, argued here, is that oral argument justifies continued high optimism that the King plaintiffs prevail.
The key lies in the three-clerk hypothetical put by Justice Kagan to plaintiffs’ counsel, Michael Carvin:
JUSTICE KAGAN: [Can] I offer you a sort of simple daily life kind of example which I think is linguistically equivalent to what the sections here say that Justice Breyer was talking about? So I have three clerks, Mr. Carvin. Their names are Will and Elizabeth and Amanda. Okay? So my first clerk, I say, Will, I’d like you to write me a memo. And I say, Elizabeth, I want you to edit Will’s memo once he’s done. And then I say, Amanda, listen, if Will is too busy to write the memo, I want you to write such memo. Now, my question is: If Will is too busy to write the memo and Amanda has to write such memo, should Elizabeth edit the memo? (Laughter.)
While the exchange elicited a sharp laugh from the audience, it deserves serious post-argument comment for its wholly unfunny legal import.
What was Justice Kagan’s point in this far afield hypo, an exercise beloved of judges and the stuff of nightmares for practicing attorneys everywhere?
Jack Balkin has made an interesting observation about the argument in King v. Burwell:
One of the strongest arguments for the government’s position in King v. Burwell has been based on consequences: if the Supreme Court denied insurance subsidies to customers on federal exchanges, the consequences will be disastrous both for insureds and for the states.
But he goes on to note that not all the justices agree on the consequences, pointing out that unlike some of the other justices, Scalia thinks that Congress would fix the statute if subsidies become unavailable on federal exchanges. Balkin thinks this disagreement may prove a problem for the success of the government’s argument. I think the disagreement provides yet another reason that arguments based on such consequences have no place in the judiciary’s determination of the meaning of a law.
In my view, the meaning of a statute, like the meaning of a constitutional provision, is established at the time it was enacted.
Yesterday’s extended argument in King v. Burwell brought moments of something bordering on joy and gratitude. The exchanges between Justice Elena Kagan and Mike Carvin, both at their very considerable best, stand out: serious questions, serious answers; obvious mutual respect. No matter whose side (if any) you’re on, that’s the way the system is supposed to operate. Give thanks when it (still) does. And then, there were moments that made your heart sink: JUSTICE SCALIA: What about Congress? You really think Congress is just going to sit there while—while all of these disastrous consequences ensue. I mean, how often have we come out…