Bench Memos

Did Roberts Really “Burn” Scalia in King v. Burwell?

For a decision purporting to stand for the notion that words should be read in context, yesterday’s decision has sparked a fair amount of non-contextual criticism of Justice Scalia.  In the Washington Post we read that the Chief Justice “quietly burns Scalia” in his decision by quoting back to him a phrase from the dissent Scalia coauthored in NFIB v. Sebelius, the previous Obamacare case.  To hear liberal pundits tell it, Roberts called Scalia out as having flipped his own position on statutory interpretation from one case to the other. 

Except he didn’t.

The quote from Scalia occurred in the portion of the NFIB dissent discussing severability – whether the remainder of the law could stand in the absence of provisions that the dissent would have struck down.  A key question in traditional severability analysis is whether the statute would function as intended without the unconstitutional provision.  Scalia’s statement that “[w]ithout the federal subsidies … the exchanges would not operate as Congress intended and may not operate at all” goes directly to that question.  It had nothing to do with how to interpret the text of the statute itself – that wasn’t a question before the Court. 

The sentence is valid as far as the Chief takes it himself – it’s true that the statute won’t function well without the subsidies, as I’m sure Scalia still agrees. But that dysfunction isn’t the type the Court is authorized to fix.  First, because it’s possible the threat of subsidy loss, though drastic, was precisely what Congress “intended.”  Just ask Jonathan Gruber.  If so, then non-functioning federal exchanges was just one more step towards the “cooperative federalism” model that Obamacare was trying to impose.  And second, because even if the subsidy issue was due to what has been euphemistically called “inartful drafting,” that’s Congress’ problem and the buck should stop there. 

If you want a real gotcha quote from yesterday’s case, the prize goes to Scalia when he quotes last term’s Michigan v. Bay Mills case, written by Justice Kagan and joined by all members of the King majority except for Ginsburg: “This Court has no roving license … to disregard clear language simply on the view that … Congress ‘must have intended’ something broader.”  Well put, Justice Kagan, well put.

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