Justice Kennedy and a Functioning Congress

Earlier this week Justice Kennedy and Justice Breyer testified before a House Committee. I’m sure they made a lot of news with their statements, but obviously the news that caught my eye was related to King v. Burwell—the now-pending case involving the Affordable Care Act.

For example, Josh Blackman thinks that this portion of Justice Kennedy’s testimony might offer a clue into the Justice’s thinking on King:

We routinely decide cases involving federal statutes and we say, well, if this is wrong, the Congress will fix it. But then we hear that Congress can’t pass a bill one way or the other. That there is gridlock. Some people say that should affect the way we interpret the statutes. That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of the government.

Why is this relevant? Well, according to Prof. Blackman this statement “bears on the issue of King v. Burwell” at least in part because Kennedy is saying “that ‘gridlock’ should not impact whether the Court invalidates statutes.” As Prof. Blackman notes, during the King argument the Solicitor General “told the Court that ‘this Congress’ would not fix the ACA if the Court” ruled against the government. Moreover, Prof. Blackman draws a comparison between the potential “gridlock” point in King v. Burwell and a somewhat similar point that arose following Shelby County, which is that “the Court can give Congress a task they know they won’t do.”

I’m not in the business of reading tea leaves, so I’m not going to discuss whether Justice Kennedy’s statements actually have any predictive value for the decision in King v. Burwell. I am, however, in the business of writing about King v. Burwell, so I have two responses to Prof. Blackman’s post. Continue reading

King v. Burwell Oral Argument: Instant Reaction to Third-Hand Rumors

Unfortunately, the Supreme Court does not live-stream its arguments, so those of us not fortunate enough to be in attendance have to base our initial thoughts on reporting from folks at SCOTUSblog who scribble notes and run in and out of the courtroom. But it’s better than nothing! Some quick thoughts:

Doge v. Burwell

1. Context vs. Isolationism — It’s difficult (impossible?) to get a holistic sense of the argument from just following the live-blog reporting, but most of the questioning seemed to focus on the context and structure of the statute as a whole. Obviously, both sides rely on context, but framing the case as a question of context—as opposed to a question about an isolated phrase which is then tested against context—is likely good news for the government.

2. Standing Takes a Seat — Apparently the potential standing questions didn’t get much traction. Even the government didn’t want to argue plaintiffs’ standing in the Supreme Court, conceding that the trial court rulings together with the challengers’ attorney’s representation of continued standing were likely sufficient. This inability to challenge standing factually at the Supreme Court seems right to me.

3. Pennhurst to the Rescue? — The Justices asked a lot of questions about the Pennhurst doctrine (or federalism concerns more broadly). In short, Pennhurst treats federal inducements to states like contracts, where the terms of the deal need to be sufficiently clear for the courts to enforce the deal against the states. As explained here, if Congress really wanted to set up a carrot-and-stick system with the states, it needed to do so clearly. But as Sam Bagenstos points out in that previous link, there’s some confusion over what kinds of carrots and sticks need to be “clear” under the doctrine. And does the “seriousness” of the inducement matter? Is there a sliding-scale for clarity requirements, with serious punishments requiring a clearer statement than mild inducements? All of this matters because the mere availability of funds or credits might not require a clear statement. But a lack of subsidies that un-triggers certain other regulatory requirements (like the individual mandate) that then leads to an insurance market death spiral—that’s another matter. So what is the relevant inducement under the Pennhurst doctrine? The subsidy carrot or the death-spiral stick? Some Justices seemed concerned with the death spiral and not just the subsidy, so that could be good news for the government.

4. Constitutional Challenge vs. Constitutional Avoidance vs. Statutory Context — Things get really interesting here. The Pennhurst doctrine is a constitutional limit on Congress’s power to cajole states into acting in a certain matter. So if the challengers’ alleged subsidy/exchange inducement were insufficiently clear or improperly coercive, it might be unconstitutional—similar to how the Medicaid expansion was unconstitutional in the original ACA case. But critically, nobody is making that argument in King. The challengers don’t claim the alleged incentive system is unconstitutional, because they favor an incentive system that allows them to avoid subsidies. And the government doesn’t claim an alleged incentive system would be unconstitutional because (1) they don’t think that’s the system the ACA actually creates and (2) they likely don’t want to disclaim the ability to assert that kind of power in drafting future legislation.

What would it mean for the Court to conclude that the ACA operates like the challengers claim it operates but that the incentive structure is unconstitutionally vague or coercive? What would the remedy be? Well, similar to the Medicaid ruling in the previous case, the Court could sever the condition (“Establish an Exchange!”) from the inducement (“Your citizens get subsidies!”), which would leave us with…. precisely the construction of the statute the government is advancing here. Everyone gets subsidies regardless of who established the exchange.

But one level down from a constitutional challenge is the doctrine of constitutional avoidance, which Justice Kennedy apparently mentioned during the argument today. Basically, the doctrine of constitutional avoidance says (in relevant part) that if an interpretation of a statute would create serious constitutional problems, then the Court should interpret the statute in a manner that avoids the problems. Here, the Court could avoid the problems by adopting the government’s interpretation of the ACA. However—and Justice Scalia apparently made this point during arguments today—the doctrine only comes into play (if at all) if the statute is actually ambiguous. In other words, you can’t shoehorn the statute into a constitutional reading if the unambiguous language compels an unconstitutional one.

So the whole thing sort of folds back in on itself and we’re back to square one: Is the statute ambiguous? The head-slamming-on-desk problem with this question is that its relevant in at least three separate ways. Ambiguity is relevant for the Chevron question, because the Court will defer to an agency’s interpretation of ambiguous language. Ambiguity is relevant for the substantive constitutional Pennhurst question, since conditions must be clear (not ambiguous) to put states on notice of the terms of any incentive system. And ambiguity is relevant for the constitutional avoidance doctrine, since the Court won’t adopt a saving construction unless there’s sufficient wiggle room to do so. Ugh.

At the end of the day, however, I think the better argument is just one of regular old statutory context. In many ways, that’s all the doctrine of constitutional avoidance is: The Court doesn’t assume that Congress intended to pass unconstitutional laws. And here, you don’t need Pennhurst or Chevron or avoidance to look at the structure of the statute and conclude that section 1321 operates as a fallback, not as a threat.

Textualism Is Nothing Either Good or Bad, But Thinking Makes It So

In advance of the King v. Burwell oral argument, Jonathan Adler has an interesting post today on the fight over textualism in the case. Both sides claim the mantle of textualism; Prof. Adler argues that the challengers are the good guys in that fight. I disagree, but that’s not really the point of this post. Instead of arguing about who is better at textualism, I think the more relevant disagreement between the parties is the framing of the case: What is the question that textualism (or statutory interpretation more generally) is meant to answer in this case?

Maybe if Yorick had better health coverage . . . .

Maybe if Yorick had better health coverage . . . .

The challengers, Prof. Adler included, want to focus on the meaning of the phrase “established by the State.” It’s not hard to see why. Arguing “State means State!” has an obvious rhetorical appeal. And who could claim that “State” doesn’t mean state? Continue reading

Upcoming Event on King v. Burwell (in Seattle)

If you happen to be in Seattle (or will be on March 11) and you’re not already over-saturated with commentary, then please consider coming to the UW School of Law’s King v. Burwell panel discussion. Here’s the info:


King v. Burwell

Obamacare in the Supreme Court (Again)

Once again, the Supreme Court is set to examine the Affordable Care Act. After surviving a constitutional attack, the statute now faces a challenge based on its own text. Challengers claim that the plain language of the statute makes subsidies (a critical part of the ACA) unavailable on federally facilitated insurance exchanges. A panel of professors will discuss the case from the perspectives of health law, tax law, statutory interpretation, and administrative law.

Panel Presentation with Professors Sanford, Schumacher, Watts, and Ziff

Wednesday, March 11
12:30-1:20 p.m.
William H. Gates Hall, Room 119

Student sponsors: Federalist Society; American Constitution Society; Student Health Law Organization

The official flyer is here (suitable for framing)! Since we’ll have the benefit of already listening to and digesting the oral arguments, I expect this short program will provide an informative analysis from diverse doctrinal perspectives. For more in-depth analysis, feel free to check out my previous post under the King v. Burwell “tag”: https://ziffblog.wordpress.com/tag/king-v-burwell/

Appellate Review of Standing in King v. Burwell (with Updates)

The latest hot topic in King v. Burwell is standing: Have the challengers’ hand-picked plaintiffs actually suffered an injury that allows them to sue to invalidate the IRS’s tax-subsidy rule? Nicholas Bagley does a nice job of walking through the legal and factual basics in a post this morning. I’m going to start with a short introduction to standing and King before moving on to what I think is the more interesting question: an appellate court’s power to reexamine the factual bases of plaintiffs’ standing. Continue reading

The Variousness of Federal Law, Part II (Updated)

In response to my post yesterday about a state court’s freedom in filling “gaps” in federal law, Prof. Dorf made a kind and interesting comment on his own blog:

I think that the forum court does not ultimately have the latitude to apply its own law about how to ascertain the foreign state’s law, although in many cases that won’t be a constraint because the foreign state won’t have law on how to ascertain its own law.

Let me illustrate with a further twist. Suppose that in your hypo WA had a state constitutional rule that said that “authoritative advisory opinions of the State Attorney General on the meaning of civil rights laws shall be treated as binding on the courts unless unreasonable.” Now suppose that the NY courts, if applying their own approach, would not give any deference to the WA AG’s construction of WA law but instead would predict what the WA SCt would do based on its past precedents. Shouldn’t it nonetheless treat the AG’s advisory opinions as conclusive if reasonable? And if so, isn’t that because the foreign state’s methods of interpretation are bound up in the foreign state’s laws?

If I’m right about that, then maybe you’re right that I don’t need the Supremacy Clause for the parallel conclusion in the state/federal case.

A few thoughts in response to Prof. Dorf’s new hypothetical: Continue reading

Alabama, Same-Sex Marriage, and the Variousness of Federal Law

Apologies to Prof. Mishkin for borrowing his title.

In this post, I’d like to discuss a topic that’s gotten some ink in connection with Alabama’s same-sex marriage case: To what extent are state courts required to follow the constitutional rulings of lower federal courts? Lots of folks have written extremely interesting pieces on this topic, such as Michael Dorf (here, here, and here), Christian Turner (here), Joe Palazzolo (here), and Howard Wasserman (here, here, here, and here). Those are great and interesting posts. You should read them!

Here, I’ll start by providing a bit of foundational information for folks who might not be as familiar with the relationship between state and federal courts. Then I’d like to address one of the more theoretical points debated between Prof. Dorf and Prof. Turner. (If you already know all about interjurisdictional precedent, feel free to skip ahead!)

First, the Basics
Continue reading