Bench Memos

Law & the Courts

Re: Parsing Justice Kennedy

Along with my initial comments on the federalism concerns that Justice Kennedy expressed at oral argument yesterday in King v. Burwell, I’d recommend that you read posts by Randy Barnett and Adam White and this (subscriber-only) Wall Street Journal op-ed by Oklahoma attorney general Scott Pruitt. An excerpt from Pruitt’s piece:

There is no legal precedent for a finding of coercion based solely on the fact that a federal program does not work well when the states decline to assist in its implementation. This sort of “well, Congress did such a bad job that states have no choice but to step in and bail Congress out by acquiescing” argument is, as U.S. Solicitor General Donald Verrilli put it Wednesday, “novel.” That is precisely why the federal government never made this argument in any brief, and why Mr. Verrilli was quick to distance himself from it at oral argument….

Declining to establish a state exchange allowed Oklahoma to voice its strong political opposition to the Affordable Care Act as a whole, as well as to make a statement that it wanted neither the large-employer mandate nor the individual mandate to have effect within its borders. That was the trade-off. Oklahoma declined the premium tax credits, but freed itself of those mandates, and that was a choice the state was happy to make.

Also worth reading: Jonathan Adler offers insightful observations on various aspects of the oral argument.


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