The Chief Justice’s Brand of Textualism

If you’re reading this, you already know that the Supreme Court issued King v. Burwell today and that it was a 6-3 win for the government, with Chief Justice Roberts writing for the majority. The Chief’s opinion focused on the text, context, structure, and “scheme” of the statute in concluding that the phrase “established by the State under section 1311” includes exchanges established by the federal government under section 1321. Rick Hasen writes that this aspect of the Court’s opinion “rehabilitates a focus on the law’s purpose as a touchstone to interpretation, over a rigid and formalistic textualism that ignores real-world consequences.”

I agree generally with this sentiment. King shows that textualism can be flexible. But I want to use this post to put a bit of a finer point on it. Continue reading


ICYMI: King v. Burwell Panel at UW School of Law

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!


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

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”:

The Mercurial Efficiency of Markets

This morning the Supreme Court decided Halliburton v. Erica P. John Fund, Inc. (The SCOTUSblog page for the case is here.) In short, the Court reaffirmed the so-called fraud-on-the-market presumption in securities fraud cases. I’ll give a brief summary of the law, but I’d like to make a small point about conservative hypocrisy on the usefulness of markets. Halliburton presents an interesting about-face for many conservatives. To protect business interests, the usually pro-market voices on the right argued that we should not trust markets to accurately and efficiently allocate resources. That’s not the tune those voices normally sing. Continue reading

The End of Racism! (a/k/a A Lump of Coal from SCOTUS Claus!)

Well, SCOTUS Claus left us a stocking full of coal this morning in Shelby County v. Holder. I’m not going to do a full analysis of the case, since other people have already done a much better job of that than I ever could. (I’m talking about you, SCOTUSblog, and your already-posted five articles and forthcoming Shelby reaction symposium.) But here’s the short-short summary, followed by some specific questions/thoughts:

coal in stocking

Continue reading