Bench Memos

King v. Burwell: Too Bad We Can’t Fire the Umpire

When I first saw that the holding in King v. Burwell was 6-3 in favor of the government with the Chief writing, I assumed it was his attempt to “jump on the grenade” of a bad decision and write it in the least damaging way possible.  Not that I endorse judges voting contrary to what they believe is the correct legal outcome of a case, but at least I could have credited him with meaning well.  On the contrary, it appears that the Chief has simply gone over to the dark side.

You all know the background of the case: the Affordable Care Act provides subsidies only to those who purchase insurance on an “Exchange established by the State.”  The question is whether that provision it should be read to also provide subsidies to exchanges established by the federal government when states fail to establish their own exchanges.  The biggest argument in favor of this interpretation is that the law just won’t work well if there aren’t subsidies and mandates in most states that will induce or force people to buy insurance.  The biggest argument against it is the notion that words have meaning, and that A ≠ not A.

The Chief’s opinion does say a few good things.  First, it points out how regulation is frequently a “can’t eat just one” enterprise.  When states started implementing guaranteed issue and community rating requirements, they triggered a “death spiral” of costs because they created incentives to avoid buying insurance until you were already sick (at which point it wasn’t functioning as “insurance” anymore, but why quibble over linguistic precision after today’s decision?).  Of course, the cure for dysfunctional regulation was more regulation, and so the insurance mandates were born.  Which is an important second point made by the Chief: Obamacare was modeled on Massachusetts’ health care system.  This became something of a controversy during the last election, but like it or not, it’s a pretty clear fact.

Another correct holding of the majority is that Chevron deference doesn’t apply in this case.  If Congress had purposely left the term “established by the State” ambiguous to give an agency the authority to give it content, the Courts would have deferred to the agency.  But, as the Chief points out, Congress would hardly do so with such a question of “deep ‘economic and political significance’ that is central to this statutory scheme.”  I would add that it’s not clear that the IRS would be the correct agency to interpret the statute in any case, since the statute also is administered by HHS.  Plus, Chevron is only supposed to apply when a statute is ambiguous in the first place, which this isn’t.

Now if Roberts had been “jumping on a grenade” to write the opinion, here’s where he would probably have diverged from the path he actually took.  After all, as he pointed out in oral arguments, a holding under Chevron would leave the door wide open for a future administration to change the IRS’ interpretation to one that comports with the statutory text.  That leaves a ticking time bomb in place and raises the stakes for the next election (if that were even possible).  Of course, such a holding would have required him to find the plain text to be ambiguous, but that doesn’t seem to be a problem for Roberts.  Which leads me to the body of his legal reasoning.

The Chief gives three rationales about the “context and structure” of the ACA that he thinks justify departing from what he acknowledges “would otherwise be the most natural reading of the pertinent statutory phrase.”  First, he claims that authorizing the federal government to establish “such Exchange” if a state opts out makes the two types of exchanges effectively interchangeable, even when the word “Exchange” is qualified by “established by the State.”  Second, he believes that “the Act clearly contemplates that there will be qualified individuals on every Exchange,” in other words, that subsidies are available on every exchange.  Of course, that begs the question.  Third, he points to a circularity in the definition, finally concluding that federal exchanges should be considered “established under §18031” regardless of the section that established them because that is part of the definition of “Exchange.” Fair enough.  It still doesn’t eliminate the problem of those pesky words “by the State.”

Having mined the statute for reasons to deem the text of the law ambiguous, the Chief appeals to what he takes to be the purpose of the statute: avoiding death spirals.  He also cites the statutory structure as supporting his holding because he claimed such important language should be located more prominently in the statute if it was doing such important work.  The problem with that argument is that the Chief already acknowledged that “the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.”  Yes, we might hope that a significant phrase would be highlighted more prominently, but we also might hope that our legislators would use care and deliberation in their sausagecraft.

The Chief doesn’t reveal the methodological engine of his opinion until his final section:

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.  If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.

This is unadulterated purposivism.  And even more appalling because the Chief is willing to stretch his definition of “if at all possible” as far as he stretches “established by the State.”  We wouldn’t call an umpire fair if he stretched, squinted, and kicked home plate a bit before announcing a strike because the pitcher clearly intended to throw in the strike zone.

Unfortunately, we’re stuck with our “umpire,” because (as Justice Scalia points out in his dissent) we have no more power to fire him than he has to write laws.  Heck, we can’t even fire him for rewriting the law as he did in this case.  But we can be more careful the next time around, insisting that potential justices demonstrate a commitment to evenhanded judging that will last beyond the confirmation hearings.

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