Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Federalism and the burden of textual clarity on the challengers in King v. Burwell
I have a new piece at Politico that follows up on the federalism arguments in King v. Burwell, the challenge to the Obamacare subsidies heard by the Court this week. Here is an excerpt and link to the full piece:
Federalism comes into play here because, properly understood, the case at the big picture level is all about the nature of the state-federal relationship Congress designed when it wrote the ACA. But federalism is also relevant at the nitty gritty level of legal doctrine and the parsing of the words of the statute, because, as the amicus brief I co-authored in the case details, the court has a set of doctrines that tell it how to interpret statutory text when a federalism question is at issue. Those doctrines prohibit the court from reading a statute to intrude on the states or to impose a drastic condition or consequence on the states unless the statute is crystal clear. The relevance of these doctrines to King, and the textual interpretation question at the heart of the case, is obvious: For the challengers to win, the drastic penalty their reading would impose on the states must be absolutely clear in the statute.
The ACA comes nowhere close to meeting this requisite standard of clarity. As Justice Kagan noted at the oral argument, “This took a year and a half for anybody to even notice this language.” In fact, the four conservative dissenting justices in the 2012 ACA opinion themselves also described the statute as allowing the subsidies. So how could it be, as the challengers now argue, that the subsidies are denied in the statute with crystal clarity, if no one, not even the court, read the statute that way until this case was cooked up? It is also irrelevant if states now understand the possibility of the penalty after the case has received so much attention. The court’s federalism doctrines are about the clarity of statutory text at the time ofenactment. Why? Because, as law professor Michael Dorf also noted today, the only way states can protect themselves in the political process—and the way that federally elected officials can best protect the states—is for the states to be on notice of what a potential statute requires so that they can object before it becomes a law. It is unfathomable that, if this penalty really were written into the statute, no state, politician, blogger or insurer would have objected to it in the two years of the ACA’s intense pre-enactment scrutiny. It simply is too drastic and too controversial to have gone unnoticed if it was in there as clearly as the challengers claim.
That should be the end of the matter. Without that requisite level of clarity, the challengers’ reading cannot prevail. There is a lot of post-argument talk on legal blogs about whether or not the Affordable Care Act, as the challengers would read it, coerces the states in ways that may raise constitutional problems, and how the ACA’s insurance exchange provisions compare to what the court found to be the coercive nature of the ACA’s Medicaid expansion in 2012. (The brief I co-authored does not address this question of potential coercion, but othersdo). But no one needs to answer those questions to decide this case, because the statute cannot fairly be read—whether interpreted as a matter of text, context or in light of the federalism doctrines’ high standard of clarity—as the challengers would read it. Indeed, the court has applied these federalism doctrines in many other cases to reject state-unfriendly readings when the statutory text was miles clearer than this.
Of course, if a justice has remaining doubts about the clarity of the text, the potential constitutional question may indeed have relevance. There is another black-letter doctrine that directs the court, when faced with competing interpretations of a statute, one of which raises a potential constitutional issue, to pick the other interpretation. That doctrine of “constitutional avoidance” is grounded in principles of separation of powers and judicial restraint: It safeguards against the concern that judges will legislate.
But the potentially coercive nature of the consequences also has another kind of relevance. The more dramatic the penalty, the more evident it is that the statute lacked the requisite textual clarity. It is implausible that no one would have noticed such a penalty, if it actually existed. Even Justices Scalia and Alito on Wednesday, at oral argument, assumed that if the court ruled for the challengers, Congress or the states would have no choice but to quickly address the dramatic consequences of the challengers’ interpretation. That very assumption—that the ACA can’t function properly or even tolerably exist as read by the challengers—is another nail in the coffin of the preposterous notion that it was written, in crystal clear fashion no less, to fail.