Legal Analysis, Writing, and Tummy Rubs with Professor Ziff

I’m not sure what Scott Greenfield is upset about, but he’s clearly upset. That’s kind of his schtick. Today his opprobrium is aimed at legal academia, or academia generally, or students, or perhaps some combination of that and more. And for some reason I’m in his sights today. Look at this nice picture he made of me:

Ziff Tummy Rubs Continue reading

Transparency, Privacy, and Police Body Cams in Washington

Bill Lucia has a great article in Crosscut about a little wrinkle in new officer-worn body camera policies being adopted by police departments across the state:

But even though his officers embraced the new technology, and the department has the money set aside in its 2015 budget to roll out a permanent body camera program, Strachan is planning to hold off for now. The reason: At least two other Washington state police departments that use the cameras have received public disclosure requests for all video footage recorded by the devices. The requests threaten to create a crippling workload for agencies with limited staff and technology. Some police officials also worry about the privacy implications for their communities if the footage is made widely available.

Lucia at 1 (emphasis added). Continue reading

A Walk Through Halbig, King, and the ACA Litigation

Over at the Incidental Economist, Nicholas Bagley has posted an extremely useful walk through his posts on Halbig and King—the current ACA litigation that just reached the Supreme Court. If you’re new to the King-Halbig litigation, or even if you’ve been following it for some time, Bagley’s writings are “must read” material.

Ziff Notes

And because I’m unoriginal, I thought I’d do the same for my posts, now that this issue is heating up a bit: Continue reading

In King v. Burwell, the Challengers Find Their Inner Bill Clinton

It depends on what the meaning of the word “such” is. — Bill Clinton (maybe, if he were a lawyer in King v. Burwell)


The word “such” is having its fifteen minutes of fame with the recent PPACA litigation. Much of the government’s narrow textual argument hinges on the word “such”: Yes, section 1401 makes subsidies available on an exchange “established by the State.” But in the absence of a state exchange, section 1321 provides for the federal government to establish “such Exchange.” That “such” (along with numerous other contextual and structural indicators) means that the federal exchange is the functional equivalent of a state exchange when state exchanges are referenced elsewhere in the statute, including in section 1401. Continue reading

Halbig and the Problem of Creeping Constitutionalism: Cato Reflections Part V

On October 30, I was invited to participate in a Cato Institute panel discussion on Halbig, King, and related challenges to the Affordable Care Act. In the wake of the conference, I’ll be writing a few posts based on the panel discussion. If you’d like to watch the entire law-focused panel, I’ve created a C-SPAN clip here. Previous reflections at Part I (Isolationism), Part II (Textualism), Part III (The Whole-Text Canon), and Part IV (Halbig’s “Two Exchanges” Problem).

Quit hitting yourself Obamacare! Quit hitting yourself!

Quit hitting yourself Obamacare! Quit hitting yourself!

Almost twenty years ago, Justice Scalia lamented how the common-law attitude had infected other forms of legal analysis, especially statutory interpretation:

But though I have no quarrel with the common law and its process, I do question whether the attitude of the common-law judge—the mind-set that asks, “What is the most desirable resolution of this case, and how can any impediments to the achievement of that result be evaded?”—is appropriate for most of the work that I do, and much of the work that state judges do. We live in an age of legislation, and most new law is statutory law.

Scalia, A Matter of Interpretation at 13 (emphasis in original).

Something similar has been happening with the legal challenges to tax subsidies on federal exchanges. Continue reading

The Halbig Challengers’ Biggest Textual Obstacle: Cato Reflections Part IV

On October 30, I was invited to participate in a Cato Institute panel discussion on Halbig, King, and related challenges to the Affordable Care Act. In the wake of the conference, I’ll be writing a few posts based on the panel discussion. If you’d like to watch the entire law-focused panel, I’ve created a C-SPAN clip here. Other reflections at Part I (Isolationism), Part II (Textualism), Part III (The Whole-Text Canon), Part IV (Halbig’s “Two Exchanges” Problem), and Part V (Creeping Constitutionalism).

In response to Halbig, many of the government’s defenders turned to arguments based on purpose to criticize the D.C. Circuit’s opinion. If the entire purpose of the ACA is to ensure that people get affordable healthcare, then how could a court possibly interpret the law in a manner that makes so many people ineligible for affordable healthcare?

I have been critical of these sorts of generalized purposivist arguments for a couple of reasons. First, statutory interpretation should start with the text of the statute, not an appeal to general purpose. Sure, perhaps eventually, as a double check or in close cases, one must resort to general purpose to resolve ambiguity. But before we get there we need to wrestle with the text.

Second, the challengers have an answer to the government’s generalized “purpose” argument: Sure, the general goal was to provide everyone with insurance. But Congress doesn’t blindly pursue its goals at all costs. There are compromises, incentives, and other limitations that come into play.

The challengers argue that with the ACA, Congress wanted the states to take the laboring oar in creating exchanges. But because of constitutional limits on commandeering state governments, Congress had to induce (or attempt to induce) states to set up exchanges through an incentive system: set up an exchange or your citizens won’t get any tax subsidies.

On the challengers’ view, this incentive system would work just like Medicaid. Congress bribes (but doesn’t impermissibly compel!) the states to participate in Medicaid; if they refuse, then Congress withholds funds—lots of funds. However, the challengers contend that Congress miscalculated in the ACA. Congress thought every state would jump at the change to get all of that federal subsidy money. And therefore Congress thought their plan would work: every citizen in every state would get tax subsidies and affordable insurance on a state exchange. When that supposed miscalculation came to fruition, the challengers argue that it was not the courts’ job to rewrite the statute to correct Congress’s “mistake.”

But the challengers have a big textual obstacle standing in their way: the statute’s provision for federal exchanges in section 1321.

Two Exchanges Continue reading