The “upcoming” King v. Burwell event at UW School of Law is no longer upcoming. But if you missed it, here’s a brief write-up and a YouTube video of the event. It starts off with Prof. Sallie Sanford giving a practical overview of what we’re talking about when we talk about an “exchange.” Then I provide a quick summary of the relevant legal issues. Then Profs. Scott Schumacher and Kathryn Watts provide some perspective from the tax law and administrative law perspectives, respectively.
The event was meant for a general audience, so the discussion is not as in-depth as other King v. Burwell “debates” you might have seen. And it’s pretty quick; we wanted to save plenty of time for Q&A (which is not posted). But it was a fun and informative event, so give it a watch! Tell your friends! It’s better than Cats!
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
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:
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. Continue reading
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 . . . .
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
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
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/
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
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