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.
And because I’m unoriginal, I thought I’d do the same for my posts, now that this issue is heating up a bit:
I started over the summer by giving some (unsolicited) advice to fellow liberals defending the government’s position. Instead of calling the challengers’ arguments “crazy” or “preposterous,” our time is better spent hammering the actual arguments that demonstrate why we have the better of the case—arguments based on the text.
I then expressed hope that, despite the extremely political nature of the ACA, strong legal advocacy and the merits of the competing statutory interpretations would rule the day in Halbig–King. Unlike constitutional interpretation, judges don’t often come to issues of statutory interpretation with an answer already in their heads.
Then Talking Points Memo and Jeffrey Toobin entered the fray, both with posts that attempted to advance the government’s case but that actually swung and missed. Both posts suffered from the same problem: they didn’t address the actual arguments being advanced by the challengers. The TPM article was only convincing if you already agreed with the government’s position, while the Toobin article misstated the challenge and read more like a bit you’d hear at a cocktail party.
Perhaps thanks to my consistent critiques of liberal arguments (I’ll let the reader decide!), I was then invited to a Halbig-King conference at the Cato Institute. Robert Barnes of the Washington Post moderated the “Law” panel, where Jonathan Adler and James Blumstein made the case for the challengers and Brianne Gorod and I made the case for the government. You can watch the video here.
My task at the conference was the make the government’s case, and following the conference I laid out my argument in a bit more detail over a series of posts. I started by critiquing the challengers’ “isolationist” method of statutory interpretation, which places enormous weight on a “plain meaning” of favored statutory language, while twisting and dispatching with less favorable statutory text.
The two following posts set out the full context-based argument for the government, including an analysis of the specifically applicable statutory provisions and the context of the statute as a whole. These posts demonstrate the textual pretzels the challengers must twist themselves into just to save their favored isolationist reading of “established by the State.”
And then there’s the challengers’ biggest problem: the ACA’s provision for federal exchanges. To rebut the challengers’ narrative that the ACA was a “carrot and stick” incentive system for the states, we don’t need legislative history or the memories of reporters covering the passage of the law. We can just look to the text.
Reading through all of the challengers’ briefs, amicus, and press coverage, I was struck by their rhetoric. People seemed to admit they were doing violence to the statute, but felt compelled to do that violence based on their statutory interpretation. While that sort of devotion to one’s interpretive conclusion makes sense in constitutional cases, it holds much less sway in statutory interpretation.
Most recently, I addressed an argument raised by Jonathan Adler and Michael Cannon based on the meaning of the word “such.” When faced with a contextual anomaly, the plaintiff-litigants misread the statute by using the “Air Bud” canon of statutory construction. Cannon and Adler go a different route: They use the word “such” to argue that eligibility requirements applicable to state exchanges flow to federal exchanges through the word “such.” That single word has far less power, in their view, when applied to benefits like tax subsidies—another example of the challengers’ isolationism.