In his Washington Post column today, E.J. Dionne argues that in King v. Burwell, Justice Scalia, relying on his own stated interpretive methods and respecting his own past statements about the Affordable Care Act itself, should vote to uphold the Obama administration’s decision to treat federally-created insurance exchanges in many of the states as equivalent to state-established exchanges, for purposes of tax subsidies and the employer and individual mandates.
On the question of Scalia’s textualism and originalism when it comes to reading statutes, and the application of his methods to King, Dionne relies without further elaboration on Professor Abbe Gluck’s recent post at SCOTUSblog. So I’ll rely without further elaboration on Professor Jonathan Adler’s extended reply to Gluck at the Volokh Conspiracy, and focus instead on Dionne’s other point—that Scalia has joined in past statements about the ACA that should bind him to the government’s position in King.
In their dissent from the 2012 decision upholding the law, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito read the law exactly as its supporters do. They wrote: “Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State.” And they noted of the law’s structure: “That system of incentives collapses if the federal subsidies are invalidated.”
These quotations don’t really provide the help to Dionne’s argument that he thinks. The first quotation appears on p. 44 of the 65-page joint dissent of Scalia, Kennedy, Thomas, and Alito, and it expresses a commonplace observation about the law that every commentator on both sides of the Halbig and King cases would agree with. The statute authorizes and invites the states to establish health insurance exchanges, and provides for the federal government to create exchanges where states decline to do so. No one denies this. The only question is whether the tax subsidies available in the state-established exchanges, as well as the penalties of the individual mandate for the many individuals who would qualify for the subsidies, can be extended to the participants in the exchanges created by the federal government. It’s hard to see what point Dionne is making by quoting this sentence from the NFIB dissent that Scalia co-authored.
It must then be the second sentence he quotes that rounds out the argument: “That system of incentives collapses if the federal subsidies are invalidated.” But that sentence occurs fifteen pages after the first one Dionne quotes—it’s on page 60 of the dissent—and its context is important. The four dissenters lost on the individual mandate (upheld), won on the Medicaid expansion’s imposition on the states (struck down) but not on the validity of the expansion as such, and finally lost on the question whether the invalidation of either of those parts could be considered severable from the fate of the act as a whole. (This section V of the dissent begins on p. 48.) They argued that the structure of the law was such that striking down the individual mandate (as they would have done) and the Medicaid expansion (which was partly preserved by what they called “rewriting” the law) so harmed the attainment of Congress’s evident purposes that they would hold these major provisions not to be “severable” from the rest of the statute. It followed that they would strike down the entire ACA. Better that it should all go down than that the justices patch up the monster so it can shamble on, or so they argued.
But note that this view of the statute’s interlocking major parts, and of the way they function together, was entirely based on the NFIB dissenters’ reading of the statute’s text, parts of which they regarded as unconstitutional. They were unwilling to foist on Congress, and the Obama administration, a text the Congress did not write, but which was judicially rewritten here, and had a hole poked in it there, with the Court saying “there, now go make that work.” The issue is quite different in King, a case that raises no issues of the ACA’s constitutionality, but instead considers the logical coherence of the statute Congress did write, and the power of the executive branch to rewrite it in a way that saves it from itself.
In other words, in NFIB, Scalia et al. were unwilling to countenance judicial rewriting of a statute to save it from an adverse constitutional judgment against the law as a whole, especially if that meant its overall aims as a policy were ill-served. But in King, the Obama administration is asking the justices to countenance executive rewriting of the statute to save its overall aims from being ill-served by adherence to its actual text. These are two very different situations, and there is no reason for Scalia and his colleagues not to stand fast against any kind of rewriting of the statute, whoever is attempting it. Any collapse of Obamacare into incoherence by an adverse judgment in King would be the fault of the Congress, not of the justices. And “odd” policy outcomes do not constitute the kind of “absurdity” that trumps a straightforward reading of the text, as Judge Griffith pointed out in Halbig. (The view that “established by the state” meant what it said, of course, is arguably bolstered by a reading of the act’s purposes, if we recall that tax subsidies to participants in each state were supposed to attract state legislatures to create their respective exchanges. The fact that so many did not do so suggests that the Democrats, in their unwillingness to consider any views other than their own as they leveraged passage of the bill, were bad calculators of the incentives they were offering state policymakers, insurance consumers, and taxpayers—not that they didn’t mean to do what they did.)
A final note on trying to hold the NFIB dissenters to a peculiar reading of their statements in that case: as Jonathan Adler points out, the four co-authors said at least one plainly untrue thing, that “[t]he ACA requires each State to establish a health-insurance ‘exchange’” (that’s on p. 59 of the dissent). He might have added that this “indisputably false” statement is actually contradicted by the first line Dionne quotes above (from p. 44) which contemplates with equanimity the possibility of a state that “declines to participate” in the scheme Congress set up.
If E.J. Dionne thinks Justice Scalia and his colleagues should be held to past statements made in their NFIB dissent about the meaning of the ACA, should that include the statements they made that are patently wrong and that they contradicted elsewhere in the same dissent? Or just the statements that Dionne likes when they’re taken out of context?
And a postscript is in order. Dionne ends his column with this paragraph:
Here’s a hypothetical for you: First, the Supreme Court issues a ruling that installs a conservative president. Then, he appoints two conservative Supreme Court justices who then join with three of their colleagues to make mincemeat of the greatest achievement of a progressive president elected by a clear majority. If such a thing happened in any other country, would we still call it a democratic republic?
A charitable reading of this paragraph is that Dionne sent in a shorter than usual column, and his editor shot him an e-mail that he could use 60 or 70 more words just to make the page’s layout work better. In need of something more to say, Dionne coughed up some ancient bile about Bush v. Gore, as though there were some dark design afoot that really (stay with me here, folks, don’t think about it too much) connects that decision with this one. This is stuff out of a Dan Brown novel. You want absurdity? E.J. Dionne can give you absurdity!