The Busy Reader’s Guide to Amicus Briefs in King v. Burwell

by Jonathan Keim

A week from Wednesday, on March 4, 2015, the Supreme Court will hear argument in King v. Burwell about the legality of tax subsidies for insurance plans bought somewhere other than exchanges “established by the State.” 

The case has certainly merited a great deal of attention from amici: 21 amicus briefs support petitioner/plaintiffs, and 34 briefs support the government. Bench Memos readers are likely to be too busy to read all 55 briefs, but fear not, gentle reader: I shall guide you.  To paraphrase an old Scrubbing Bubbles commercial, I read the amicus briefs so you don’t have to.

Briefs In Support of Petitioners/Plaintiffs

The briefs supporting the challengers are certainly more fun to read than the others. Three briefs compare the government’s interpretation of “established by the State” to something in Lewis Carroll’s Through the Looking Glass. Several cite a scholarly book by legal historian Philip Hamburger, Is Administrative Law Unlawful? (You can find the book publisher’s page here, Adam J. White’s review in the Wall Street Journal here, and a Federalist Society podcast about the book here.)

If you only have time to read three amicus briefs, start with the brief filed on behalf of law professor Jonathan Adler and Michael F. Cannon. Their brief told the story of the tax subsidy provision with reference to the policy and legislative history. After that, read the brief filed by the Judicial Education Project and the Center for Individual Rights on behalf of several U.S. senators and representatives. This brief made a detailed textual argument in support of the petitioners, as well as noting that the IRS adopted its controversial rule without studying the issue in detail.

Third, read the scholarly Consumers’ Research brief, which was filed by Hon. Ronald A. Cass and provided a normative argument for why the Court should not speculate about the consequences of its decisions. (Aside from being a sound piece of scholarly work, this brief also counters the vast number of consequentialist arguments raised by amici on the other side.) Consideration of practical consequences, Cass argues, should be left to Congress and the President:

The law-creating task comprehends two different sorts of judgment: (1) on analytical issues—respecting the manner in which individuals and entities will react to particular situations, the interaction among different responses, the way changes in specific factors alter those responses—and (2) on valuation issues (respecting the worth of particular outcomes). Both sorts of judgments are decidedly the province of the political branches, not the courts.

Former Supreme Court clerks Joshua Hawley and Erin Morrow Hawley were on a brief that takes a different tack on the federalism question, filed on behalf of Missouri Liberty Project and Missouri Forward Foundation. The brief argued that the IRS rule effectively nullifies the policy choice made by Missouri voters in rejecting the establishment of a state exchange. As such, the Court “should interpret the ACA to give full effect to the results of the state deliberation that the statute’s plain terms invite.”

The states of Oklahoma, Alabama, Georgia, Nebraska, South Carolina, and West Virginia signed a brief explaining why Congress conditioned Obamacare’s tax credits on states adopting their own exchanges. Indiana’s brief raised the problem of Tenth Amendment issues with the IRS rule and pointed out how the employer mandate violates the intergovernmental tax immunity doctrine.

Another important brief was filed on behalf of Jeremy Rabkin, a law professor at George Mason. The Rabkin amicus brief attacked the argument (popular in academia) that an exchange established by HHS is equivalent to an exchange “established by the State.” The crux of this argument is the use of the word “such” in describing an HHS-established exchange (section 1321 of the ACA, if you want to look it up), which means that when HHS establishes its own exchanges, it is creating an exchange “equivalent” to the state-established exchange.

A brief filed by the American Civil Rights Union and the Heartland Institute gets the award for “Snarkiest Amicus Brief.”  Their argument focused on the plain text of the statute and paraphrased the question presented: “the real question before this Court today: ‘Is this America, or is this Venezuela?’” The brief also violated Chief Justice Roberts’ advice not to cite Magna Charta in briefs and asked the Court to take judicial notice that “this case is not being heard in Wonderland, and that the [government agencies] are not Alice.”

The Cato Institute and law professor Josh Blackman filed their own brief outlining the dangers of executive lawmaking, documenting the Administration’s numerous attempts to reshape Obamacare without the help of Congress. As they described it, King is about the asymmetric understandings in the Princess Bride: “To paraphrase Inigo Montoya, Congress didn’t think ‘expand coverage’ means what the executive thinks it means.”

Several briefs identified federalism problems with the IRS rule. The brief from the Galen Institute and state legislators focused on the federalism and “major question” canons of interpretation. The brief noted how Obamacare appears to displace states’ traditional authority over insurance regulation and concludes that without a “clear statement” that such displacement was intended or that Congress intended to leave such a significant question to the IRS, the Court should not construe Obamacare to authorize the challenged IRS rule.

The brief filed by the Pacific Research Institute, Individual Rights Foundation, and Reason Foundation highlighted the clear statutory text and argued that the IRS’s broad purposive reading of the statute is at odds with the separation of powers. It’s also impractical:

[A] unified legislative purpose is almost always a myth. Legislation is the product of negotiation and compromise in which lawmakers may sacrifice one interest to achieve another. In the main, a bill successfully runs the legislative gauntlet not because Congress has a unity of purpose—but because it reconciles a multiplicity of purposes, some of which may be incompatible. The notion that every Representative and every Senator voting in favor of a bill did so for the same reason paints an unrealistic picture of the legislative process. The process leading to the ACA’s passage illustrates the point. This behemoth of a law—over 2,400 pages in all—resulted from ad hoc procedures, convenient alliances, special deals to secure holdout votes, admissions by key legislators that they never read it, and a chaotic race to the finish line prompted by the surprising outcome of a special election in Massachusetts. If there were ever a case in which a court should refrain from divining a unified congressional purpose, this is it.

 A group of law professors filed an amicus brief highlighting separation of powers concerns with allowing the executive branch to rewrite such a massive benefits program. The Mountain States Legal Foundation’s brief made a similar argument while highlighting the plain text application of the Obamacare statute.

The Washington Legal Foundation’s brief took a textual approach, focusing on the application of Chevron doctrine to King and directing the Court to the “legislative grace” canon of interpretation.

Briefs in Support of the Government

Having slogged through as many of the 34 briefs supporting the government as I could find (31, to be exact), it’s pretty clear that the government’s defenders largely doubled down on the purposivist/consequentialist defense of the IRS rule. As Professor Adler pointed out today at a Heritage Foundation panel, the Solicitor General’s argument that “established by the State” is a “term of art” would require the Court to interpret nearly every word in the supposed “term of art” to mean the opposite of its ordinary meaning.

For that reason, I suspect, the vast majority of the amicus briefs filed in support of the government’s position made roughly the same consequentialist argument: Congress was trying to do good stuff with Obamacare; striking down the subsidies means less good stuff; therefore the Court shouldn’t strike down the subsidies. But that isn’t really legal argument at all; it’s policy. Wrong branch of government, folks.

When most of the pro-government briefs did include legal argument, they began not with a statement of legal principle, but by describing the supposedly disastrous consequences of a ruling for the petitioners. Only after reciting sky-will-fall predictions did they proceed to the legal arguments. The brief filed by several states and the District of Columbia, for instance, delayed its argument that Obamacare failed to give states clear notice of the consequences of relying on a federally-facilitated exchange under the Pennhurst doctrine until after it proclaims the surpassing importance of the tax subsidies.

Anyway, the pro-government amicus briefs clearly reflected the interest-group politics that created the Frankenstatute — er, complex legislation — now known as Obamacare. One brief focused on the benefits that the IRS rule provides to children. Other briefs explained how hospitals would lose money, the impact on elder care, another cancer, this or that demographic group, etc. Some briefs provided policy analysis devoid of substantive legal argument, including even the brief submitted for Harvard Law’s Center for Health Law and Policy Innovation. It’s no wonder the Wall Street Journal’s editorial page subtitled a piece on King “ObamaCare’s industry allies shake the tin cup at the Supreme Court.”

If you can read two amicus briefs supporting the government, I recommend starting with the one submitted on behalf of Yale law professor William N. Eskridge, Jr. and four other law professors. Their brief tried to leverage textualism against the petitioners. As the brief describes it, “this is not, as Petitioners suggest, a case about textualism vs. purposivism. It is a case about good textual analysis vs. bad textual analysis.” Although the Eskridge brief at least tried to take seriously textualism and its basis in the separation of powers, it’s too bad that most of the other amici on the government’s side didn’t get that memo.

The other recommended brief is the one submitted on behalf of Former Government Officials that tries to bolster the government’s argument that statute is ambiguous under Chevron. They turn the Galen Institute’s “major question” argument around and claim that Treasury was obliged to make a decision with “major economic and political significance whatever the agency decided.”

Similarly, two briefs tried to turn the federalism problems with the IRS rule into arguments in favor of the rule, one by claiming that state decisionmaking on exchanges would lead to “disparate geographical coverage”, and the other by claiming that conditioning subsidies on creation of exchanges would create other federalism problems. Other noteworthy items include a brief describing the history of Obamacare and the AFL-CIO arguing that freeing workers from Obamacare’s employer mandate is a bad thing.

Finally, one pro-government amicus who is a member of the SCOTUS frequent filer club threw in a few pages comparing Justice Scalia and Frodo Baggins. (This may be the first time anyone has mentioned the Nazgûl in a Supreme Court brief.) You can read it for yourself.

Re: Fish, Schmish

by Ed Whelan

Just a bit more on Justice Kagan and Dr. Seuss. (Yes, I realize that I’m giving her cutesiness the attention that I’m faulting her for seeking.)

I liked this tweet:

I also hope that in the Supreme Court’s next abortion case Kagan will have occasion to cite Dr. Seuss’s Horton Hears a Who for the proposition that “a person’s a person, no matter how small.”


Fish, Schmish

by Ed Whelan

Justice Elena Kagan is a very deft and skillful writer, but she seems unable to resist the temptation to get overly cutesy and colloquial. Her dissent yesterday in Yates v. United States (is a fish a “tangible object” within the a Sarbanes-Oxley Act provision?) reflects all those qualities.

As to too cutesy: Kagan cites Dr. Seuss’s One Fish Two Fish Red Fish Blue Fish for the proposition that a fish is “a discrete thing that possesses physical form.” But apart from the fact that the majority does not dispute that obvious proposition, I don’t see how the Dr. Seuss book provides any meaningful support for it. It seems that Kagan is just trying to win attention for citing Dr. Seuss—attention that her opinion predictably receives.  

Consider also this passage of Kagan’s (emphasis added):

The plurality claims that if §1519 applied to objects generally, Congress would not have placed it “after the pre-existing §1516, §1517, and §1518” because those are “specialized provisions.” Ante, at 11. But search me if I can find a better place for a broad ban on evidence-tampering.

“Search me”? Is that juvenile slang really the sort of thing that belongs in a Supreme Court opinion? (Yes, I understand that the case involved a search. Hence, the temptation that Kagan couldn’t resist.)

Yates v. United States: Supreme Court Throws Back Fishy Conviction (and What It Might Mean for King v. Burwell)

by Jonathan Keim

Yesterday the Supreme Court overturned a conviction for a defendant whose crime was destruction of evidence: tossing out three undersized fish that a fisheries officer had instructed him to keep for investigation. The plurality opinion may—but probably doesn’t—hint at how certain justices are thinking about next week’s argument in King v. Burwell.

It was an unusual 4-1-4 lineup. Justice Ginsburg wrote for the plurality (including the Chief and Justices Breyer and Sotomayor), Justice Alito concurred in the result only, and Justices Scalia, Kennedy, Thomas, and Kagan dissented. Justice Ginsburg’s plurality opinion concluded that the “tangible object” charged under 18 U.S.C. § 1519 “is better read to cover only objects one can use to record or preserve information, not all objects in the physical world,” By and large, the plurality opinion was a fairly straightforward exercise in statutory interpretation. After a bit of throat-clearing, the opinion noted the text, reviewed legislative history and the structure of the statute, suggested oddities with the government’s interpretation, and ultimately cited the rule of lenity. Justice Alito wrote separately to concur in the judgment, thus limiting the majority holding to application of general principles of statutory interpretation.

The dissent had an unusual lineup: Justice Kagan writing for Justices Scalia, Kennedy, and Thomas. Justice Kagan’s opinion pointed out the confusion created by the majority’s conclusion and the discrepancy with what Congress actually passed. (Interestingly enough, the legislative history that Justice Kagan recited focused on textual interpretation of the law, not its general purpose or intent.)

As a case about statutory interpretation, it was inevitable that it would raise comparisons with next week’s King v. Burwell, the case about Obamacare tax subsidies, which has oral argument scheduled for Wednesday. Even without a majority opinion in this case, at least one commentator cast a wide net for insight into how Yates indicates that Chief Justice Roberts and others might be thinking about King. I don’t think Yates does much in this regard, and here’s why.

Most of the plurality’s statements about statutory interpretation are widely acceptable principles that only the most unhinged purposivist would object to, such as the canon on surplusage, contextual reading, noscitur a sociis, ejusdem generis, etc. The justices probably differ on how the principles are applied, but there’s not much disagreement in principle.

Sure, the reader could dig out find a few quotes from the opinion to cite in favor of the government’s position in King: “Ordinarily, a word’s usage accords with its dictionary definition. In law as in life, however, the same words, placed in different contexts, sometimes mean different things.” But who disagrees with that? Thus, Justice Kagan’s observation in dissent that “I agree with the plurality (really, who does not?) that context matters in interpreting statutes.” If you really think Justice Scalia has a problem with the proposition that context matters in statutory interpretation, you need to study textualism a bit more.

Near the end, too, the plurality said: “It is highly improbable that Congress would have buried a general spoliation statute covering objects of any and every kind in a provision targeting fraud in financial record-keeping.” This argument tracks Justice Scalia’s much-quoted comment in Whitman v. American Trucking (2001) that Congress doesn’t “hide elephants in mouseholes.” But in the context of King, the elephants-in-mouseholes argument doesn’t carry much weight because the limitation of tax subsidies to exchanges “established by the State” resides in the very same section that authorized and defined the tax subsidies in the first place. Where else would Congress put a definitional limitation on subsidies?

Or also: “We have several times affirmed that identical language may convey varying content when used in different statutes, sometimes even in different provisions of the same statute.” The plurality then cites several supporting cases. But again, this was a general statement of interpretive doctrine. Justice Ginsburg was making a point that Justice Scalia made in Reading Law about the “presumption of consistent usage”: “A word or phrase is presumed to bear the same meaning throughout a text; a material variation in terms suggests a variation in meaning.” As Justice Scalia explained in that book, the presumption of consistent usage is “particularly defeasible by context.”

And that last canon brings up another problem for those who are rooting for the government in King: if anything, the plurality opinion indicates that four justices may be willing to reject one of the government’s statutory interpretation arguments. If you recall, the government’s brief argues that Obamacare uses “established by the State” as a “term of art” that has the same meaning wherever it appears in the statute and relies explicitly on the presumption of consistent usage (p. 27). That argument has always seemed strained to me, and the Yates plurality’s eagerness to explain the qualification to the presumption of consistent usage reinforces my skepticism. Regardless, the Court’s inconsistency with applying stare decisis makes it unlikely that Yates tells us anything particularly noteworthy about King.

Anyway, Yates does vindicate critics who have been trying to convince the Supreme Court to take seriously the problem of rapidly-expanding federal criminal law. If this case is any indication, the Supreme Court is finally taking up the challenge of limiting criminal liability in cases where there’s a big mismatch between the gravity of the offense and the consequences of prosecution. Congress should take up the mantle of reforming federal criminal law so the Supreme Court doesn’t have to. 

This Day in Liberal Judicial Activism—February 25

by Ed Whelan

1992—Justice Thomas’s dissenting opinion in Hudson v. McMillian—four months into his service on the Court—produces a spasm of confused outrage from the Left. As Thomas explains in the opening of his dissent, the sole issue before the Court is a legal one: Must a prisoner alleging that he has suffered “cruel and unusual punishment” establish that he has suffered a significant injury? The court below had found the prisoner’s injuries to be “minor,” and that factual determination was not under review by the Court. Addressing the legal question, Thomas reads the Court’s precedents as requiring showing of a significant injury, and he abides by that view. He also declares: “Abusive behavior by prison guards is deplorable conduct that properly evokes outrage and contempt. But that does not mean that it is invariably unconstitutional. The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.” Thomas further notes that the prisoner had state-law remedies available and, if those remedies were not adequate, a federal due-process claim.

The next day, this hitherto obscure case is featured in the lead article on the front page of the New York Times. Linda Greenhouse’s article highlights the injuries suffered by the prisoner, but fails to mention that the lower court’s finding that the injuries were minor was not under review by the Court. She also quotes extravagant language from Justice O’Connor’s majority opinion that, responding to Thomas’s position that the same legal standard should govern both excessive-force and conditions-of-confinement claims under the Eighth Amendment, falsely implies that Thomas denies the factual “difference between punching a prisoner in the face and serving him unappetizing food.” Greenhouse juxtaposes Thomas’s dissent with his confirmation testimony about his compassion. She also highlights a supposed “close alliance” between Thomas and Scalia.

One day later, a New York Times editorial, viciously titled “The Youngest, Cruelest Justice,” falsely asserts that Thomas’s dissent “contended that since the prisoner suffered only a split lip, loosened teeth, and a broken dental plate, he had no constitutional complaint.” The editorial feigns “crashing disappointment” with him. Happily, unlike others subjected to the gaseous pollutants of the Greenhouse effect, Thomas remains unaffected.

House Judiciary Committee to Hear Testimony About Executive Action on Immigration

by Jonathan Keim

Tomorrow morning in Rayburn 2141, the House Judiciary Committee will be holding a hearing about President Obama’s lawless decision to rewrite the immigration laws because he couldn’t get the legislation he wanted. The hearing looks like it will be an interesting and intelligent discussion about the legal merits (or demerits, in this case) of the President’s program. I will be live-tweeting the event (is there any other kind of tweeting?) under the hashtag #executiveoverreach.

The committee will hear from Nevada AG Adam Laxalt, who courageously joined the multistate immigration lawsuit despite Nevada Governor Sandoval’s opposition. As he explains, the lawsuit isn’t really about immigration at all. Rather, it’s about legality: the President’s unilateral attempt to “change the law” (as the President described it), his refusal to take care that the laws be faithfully executed, and his bypassing of the federal Administrative Procedure Act.

Law professor Josh Blackman will give a scholarly analysis of the Constitution’s separation of powers and how the President’s new immigration program violates that separation. Since the policy expressed in the new program is contrary to the policy established by Congress in the Immigration and Nationality Act (INA), Congress has not previously acquiesced to deferred action, notwithstanding the claims of President Obama’s Office of Legal Counsel to the contrary.

Law professor Elizabeth Price Foley will delve into the details of immigration law, focusing on three specific aspects of the President’s program. The first is status alteration, that is, they are no longer “deportable” within the meaning of the statute for three years. The second is remedy alteration, which is the Administration’s conferral of deferred action, despite its never having been authorized by Congress for this class of immigrants. Third, the program confers benefits to illegal immigrants because the granting of work authorization under the INA triggers eligibility for a wide variety of government programs.

The contrarian on the panel is law professor Stephen Legomsky, who will be defending the legality of President Obama’s action. Professor Legomsky focuses on the constitutional issue, while also attacking a recent decision by a federal district court judge who enjoined the implementation of the program.

UVA Event on Marriage Cases

by Ed Whelan

Next Monday, March 2, I’ll be at the University of Virginia to take part in a lunchtime event at the law school titled “Same-Sex Marriage at the Court.” My counterpart in the debate/discussion will be appellate lawyer Paul Smith (who argued and won Lawrence v. Texas). The event is jointly sponsored by the law school’s chapters of the Federalist Society, the American Constitution Society, and the Lambda Law Alliance.

The Five-Year Plan is Succeeding Beyond Measure

by Ed Whelan

It would be difficult to find a more one-sided and sycophantic account than this Indiana Law Journal online commentary on “Judicial Selection in Congress’ Lame Duck Session” by Richmond law professor Carl Tobias.

By Tobias’s account, the Obama White House has steadfastly pursued the nomination of “accomplished, consensus, diverse prospects” (emphasis added). Yes, even D.C. Circuit appointee Cornelia Pillard is presented as though she were an uncontroversial “mainstream” pick. Indeed, “the vast majority of trial level prospects have been nominated because they are competent, uncontroversial, and diverse, rather than ideologically aligned with the President” (emphasis added). Who knew that this White House was so non-ideological?

Tobias damns Senate Republicans at every turn but repeatedly shows himself incapable of providing fair context. For example: Republican “machinations propelled Democrats to release the ‘nuclear option,’” he declares—without any mention of Democrats’ unprecedented (and far more numerous) resort to partisan filibusters. Similarly, he faults Republicans for exercising the same procedural rights (e.g., holdover in committee) that Democrats routinely exercised against Republican nominees.

I wonder if Tobias had a previous career as an editor of Pravda. Indeed, much of his prose reads like a bad translation from Russian: e.g., “Republican obstruction instigated the most open positions the longest time”; “Activities must begin immediately to facilitate endeavors when Congress returns.”

This Day in Liberal Judicial Activism—February 24

by Ed Whelan

2010—President Obama nominates Berkeley law professor Goodwin Liu to a Ninth Circuit seat. With his volatile mix of aggressive ideology and raw inexperience, the 39-year-old Liu is that rare nominee who threatens to make the laughingstock Ninth Circuit even more ridiculous. Liu openly embraces a freewheeling constitutional approach that yields a plethora of extreme left-wing results: among them, support for the invention of a federal constitutional right to same-sex marriage, pervasive and perpetual racial quotas, and judicial imposition (usually in an “interstitial” role) of an array of rights to social “welfare” goods, including education, shelter, subsistence, and health care.

In May 2011, Liu will abandon his Ninth Circuit nomination after Democrat Ben Nelson joins Senate Republicans in defeating a cloture vote. But later that year, California governor Jerry Brown will appoint Liu to the California supreme court. Liu follows in the line of three aggressive liberal activists whom Brown appointed to the state supreme court during his first stint as governor three decades ago, Rose Bird, Cruz Reynoso, and Joseph Grodin (all of whom were ousted by  voters in their 1986 retention election).

The EEOC Loses . . . Again

by Roger Clegg

The U.S. Equal Employment Opportunity Commission has been on a losing streak lately, and that streak continues now with a good decision by the U.S. Court of Appeals by the Fourth Circuit, discussed by Pacific Legal Foundation (which filed an amicus brief in the case) here. The case involves the EEOC’s disparate-impact challenge to a company’s use of criminal background checks.