For all the textual parsing back and
forth at oral argument yesterday in King v.
Burwell, the outcome will likely turn on whether five Justices will accept the
submission of the challengers that the semantic meaning of four words in the
Affordable Care Act (“established by the State”) so clearly excludes the
availability of tax subsidies in federally facilitated exchanges as to render
irrelevant all other interpretive considerations. Those other considerations include the
implications of the challengers’ reading for other provisions in the ACA, the
basic purpose of the law to secure affordable health insurance for almost all
Americans, the financial and human consequences of ruling in favor of the
challengers, deference to reasonable agency interpretations of the law, and federalism
concerns raised by the challengers’ interpretation. In two cases last Term, Justice Scalia
offered just such a framing of the question presented, and in both of them
Chief Justice Roberts and/or Justice Kennedy rejected that framing.
The first case was a statutory
interpretation decision, Bond v. United
States, involving the meaning of Section 229 of the Chemical Weapons
Convention Implementation Act of 1998.
In that case, the Court relied in part on extra-textual considerations
in determining that the text of the statute was unclear. “In this case,”
the Chief Justice wrote for the majority, “the ambiguity derives from the
improbably broad reach of the key statutory definition given the term—‘chemical weapon’—being defined; the deeply serious consequences
of adopting such a boundless reading; and the lack of any apparent need to do
so in light of the context from which the statute arose—a treaty about chemical
warfare and terrorism.” Justice Kennedy
joined the Chief Justice’s majority opinion.
By contrast, Justice Scalia, joined by Justices Thomas and Alito,
thought that the meaning of the provision was clear.
The second case was a constitutional
decision, NLRB v. Noel Canning,
involving the meaning of the Recess Appointments Clause. During oral argument, Justice Scalia
repeatedly asked the Solicitor General whether clear constitutional text could
ever be trumped by longstanding practice. See Transcript at 6-8. Although the
Solicitor General answered affirmatively, he also emphasized that it would be
“extremely unlikely” for longstanding practice to develop in a way that is
contrary to clear text. Unlike the
Solicitor General, no Justice in Noel
Canning suggested that practice (or any other considerations) could prevail
over clear text. Rather, the majority in
Noel Canning premised its reliance on
extra-textual considerations—including historical practice and the basic purpose
of the Recess Appointments Clause—on the claim that the text of the clause was
ambiguous. That majority included Justice
Kennedy. Justice Scalia, joined by the
Chief Justice and Justices Thomas and Alito, thought that the meaning of the
Clause was clear.
At yesterday’s oral
argument in King, Justice Scalia
again asked the Solicitor General whether “it [is] not the case that if the
only reasonable interpretation of a particular provision produces
disastrous consequences in the rest of the statute, it nonetheless means what
it says.” Transcript at 47. This time, the Solicitor General did not bite. He instead responded that the
statute does not say what the challengers and Justice Scalia were arguing that
it says.
Justice Kennedy did not seem to think that
the government had the better of that textual argument, but he was palpably
concerned about certain extra-textual considerations associated with construing
the statute as the challengers do.
Specifically, Justice Kennedy seized upon “a serious constitutional
problem” if the Court were to accept the challengers’ reading of the statute—a
problem that Abbe Gluck has underscored to great effect. “It does seem to me,” Justice Kennedy told
counsel for the challengers, “that there is something very powerful to the
point that if your argument is accepted, the States are being told either
create your own Exchange, or we’ll send your insurance market into a death
spiral. . . . The cost of insurance will be sky-high, but this is not
coercion.” Transcript at 16. Such concerns may cause Justice Kennedy to
accept the government’s interpretation of the ACA in order to avoid the
constitutional question. (Indeed, even
if one does not accept the coercion objection, there is a serious
constitutional question whether the states had fair notice of the consequences
if they declined to establish their own exchanges.)
It is difficult to predict what will
happen. Chief Justice Roberts said
little about the merits, and Justice Kennedy said a number of things that
should bring comfort to both sides. If Bond and Noel Canning are informative, however, then it is easy to see how
the government may prevail. In both Bond and Noel Canning, Justice Scalia asserted a strict separation between
the clear semantic meaning of a legal text and extra-textual considerations. Justice Kennedy rejected that framing in both
cases, and the Chief Justice rejected it in one of them. The government is likely to win in King as long as either one of them
departs from Justice Scalia’s framing.