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:

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 HalbigKing. 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.

5 thoughts on “A Walk Through Halbig, King, and the ACA Litigation

  1. Thank-you for another good post.

    On the “violence to the statute” point, the Cornyn brief is most interesting. So far as I can tell, they believe that re-writing the rest of the statute (notably s2201) is legally mandated in order to protect the(ir) plain language interpretation of the disputed sections of 36B..I’ve never seen an argument like that – perhaps you could write a post on it. My instinct is that SCOTUS will lean heavily on that kind of reasoning if they find for King & Halbig.

      • Seeing your tweet just now reminded that I had something to add here:

        Yes, for sure it’s “isolationism”, but the fun bit is that it is explicitly isolationist – basically. they say: yeah, this is a bad action movie, and yeah, our isolated “plain text” reading deserves to be the hero, and here’s why it deserves to be the hero (something to do with the IRS being the “custodian of the nation’s purse”). [I should say, however, that the argument as why is not as elaborate or detailed I remembered when I wrote my initial comment, so it is less interesting than I thought. I still think it will be the key part of SCOTUS’s road map]

        PS. I suppose it’s too late for “global” vs “local” textualism? I guess that would be too inside-baseball. And for the wrong team to boot.

  2. Pingback: Affordable Care Act and Subsidies • The Judge Ben C. Green Law Library • Case Western Reserve University School of Law

  3. Pingback: The Chief Justice’s Brand of Textualism | Ziff Blog

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