Yesterday
morning, the Supreme Court heard oral argument in King v. Burwell, the
latest challenge to the Affordable Care Act. It was apparent from the Justices’
questions that many of them came into oral argument with strong views about the
case, and Justice Samuel Alito was no exception. Although most of the questions
that Justice Alito asked were critical of the government’s position, one
actually helps demonstrate why the government should prevail.
The
issue at the heart of King v. Burwell is whether the ACA makes tax
credits available to all individuals who qualify based on income, or only to
those in states that set up their own Exchanges. As many of the briefs in favor
of the government have argued—and as some of the Justices recognized at
argument—a ruling against the government would have serious consequences,
rendering the health insurance markets in states with federally-facilitated
Exchanges completely dysfunctional.
Justice
Alito tried to suggest that the Court itself could minimize this harm by staying
a decision unfavorable to the government in order to give Congress an
opportunity to respond: “Would it not be possible if we were to adopt
Petitioners’ interpretation of the statute to stay the mandate until the end of
this tax year as we have done in other cases where we have adopted an
interpretation of the constitutional -- or a statute that would have very
disruptive consequences such as the Northern Pipeline case.”
Justice
Alito wasn’t wrong that the Court has done this on rare occasions, including in
the Northern Pipeline case he mentioned. In that case from 1982, the
Court held that there were constitutional problems with the bankruptcy system,
but stayed its decision for 90 days on the ground that “it is for Congress to
determine the proper manner of restructuring the Bankruptcy Act of 1978 to
conform to the requirements of Art[icle] III in the way that will best
effectuate the legislative purpose.” According to the Court, “[t]his limited
stay [would] afford Congress an opportunity to reconstitute the bankruptcy
courts or to adopt other valid means of adjudication, without impairing the
interim administration of the bankruptcy laws.”
The
Court did the same thing in Buckley v. Valeo, the 1976 case in which,
among other things, the Court held that the Federal Election Commission was
unconstitutionally constituted. The Court stayed its judgment “for a period not
to exceed 30 days, insofar as it affects the authority of the Commission to
exercise the duties and powers granted it under the Act.” In that case, too,
the Court explained that “[t]his limited stay w[ould] afford Congress an
opportunity to reconstitute the Commission by law or to adopt other valid
enforcement mechanisms without interrupting enforcement of the provisions the
Court sustains, allowing the present Commission in the interim to function de
facto in accordance with the substantive provisions of the Act.”
In
response to Justice Alito’s question, Solicitor General Verrilli acknowledged
that “Northern Pipeline is an example of [the Court] doing that [i.e., staying its judgment], and it will
be up to the Court to decide whether it has the authority to do that,” but he
correctly noted an important distinction between King, on the one
hand, and Northern Pipeline (and Buckley), on the other: “I
will say, this does seem different than Northern Pipeline to me, because this is
about money going out of the Federal treasury, which is a different scenario,” a
distinction that may be significant because the Constitution prohibits money
being “drawn from the Treasury,” except by lawful appropriations.
But
there is another important difference between King and those older
cases—and it’s one that helps explain why the government should prevail in King.
As I discuss in a 2012 article
in the Washington Law Review, the Court should sometimes stay its
judgment in cases in which a law is challenged on constitutional grounds
because, in those cases, the Court’s decision is necessarily disrupting the
intent of Congress. In such cases, it may make sense to give Congress (or other
policymakers) an opportunity to try to address that disruption before it occurs.
Indeed, this need is particularly great when the Court strikes down a law on
constitutional grounds because the Court’s decision will often give rise to what
I call “collateral consequences,” significant disruptions to democratic
preferences that are not constitutionally required. These disruptions occur
because when policymakers enact laws, they do so in reliance on the existing
state of the law; for example, because there is an existing law Z, the policymakers don’t also enact law
Y, which they think is unnecessary in light of law Z. The
problem, of course, is when the Court strikes down law Z as
unconstitutional: law Y is not in place, even though policymakers would
have enacted it had they known law Z was unconstitutional. Thus, by staying its
decision to strike down law Z, the Court can give Congress the time to
enact law Y, or take other action in response to the Court’s decision.
Such a stay makes far less
sense when the Court is only interpreting a statute. After all, in that case,
the Court’s decision should not be undermining Congress’s intent, it should be
effectuating it. In King, if the Court were to conclude that tax credits
are not available on federally-facilitated Exchanges, the Court would likely be
concluding that that was Congress’s intent when it drafted the law. After all,
while the parties in King disagree strongly about many things, one thing
they agree on is that this language wasn’t a mistake. The law’s challengers
argue that Congress intentionally limited tax credits to state-run Exchanges to
encourage states to set up their own Exchanges, while the government argues that
Congress wanted to make clear that the Exchange referenced in the provision is
the specific state Exchange on which an individual purchases insurance, whether
run by the federal government or not.
And that’s why Justice Alito’s
question unintentionally helps make the case for the government. In raising the
possibility that a ruling for the law’s challengers would be so disruptive that
it might be appropriate for the Court to stay its judgment, Justice Alito is
implicitly recognizing that it would have made no sense for Congress to draft
the law in a way that would leave states with federally-facilitated Exchanges
with totally dysfunctional insurance markets. This is especially so since, as the dissenting
justices acknowledged when the Supreme Court considered the constitutionality of
the individual mandate in 2012, everyone at the time the law was being debated
recognized that some states might not set up their own Exchanges. In raising
this possibility, Justice Alito is, in effect, implicitly recognizing that if
the Court were to rule against the government, it would be disrupting Congress’s
intent when it enacted the law. And that is exactly what the Court should not
be doing when it is simply trying to understand a law’s meaning, especially when
the meaning advanced by the government makes the most sense of the law’s text,
structure, and history.
In
short, Justice Alito’s suggestion that the Court might impose a stay if the
government loses not only makes little
sense given the issue in the case, it underscores why the government shouldn’t
lose at all. Indeed, if the Court is thinking about what it did in Northern Pipeline,
there’s one other lesson the Court should take from that experience. At
argument, Justice Scalia suggested that it was obvious that Congress would fix
the problem if the government loses. Solicitor General Verrilli voiced a
skepticism no doubt shared by many Americans: “This Congress?,” but Justice
Scalia continued to maintain that Congress would step in. Interestingly, even
though the Court stayed its judgment in Northern Pipeline explicitly to give Congress time to respond, it didn’t
do so during the period of the stay. In fact, the Court actually extended its
stay to give Congress additional time to respond, but Congress still did not act
until 1984, leaving it up to the courts to try to address the situation
themselves in the meantime. Unfortunately, in this case, if the Court were to
rule against the government, there would not be anything the states or the
courts could do if Congress did not step in to fix the problem—yet another
reason to hope that the Court does what the ACA’s text requires and holds that
the tax credits are available nationwide.
Brianne Gorod is appellate counsel at Constitutional Accountability
Center. She served as an attorney-advisor in the Office of Legal
Counsel and law clerk to Justice Stephen Breyer. You can reach her by
e-mail at Brianne at theusconstitution.org