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
Steve Brill, who recently wrote an exhaustive--and often critical--history of the genesis of Obamacare, and who interviewed virtually everyone involved with it, reports that the petitioners' claim that “Congress could not have chosen clearer language to express its intent to limit subsidies to state exchanges,” is a complete fiction. If the petitioners are making a claim about what Congress intended or what its purposes were, Brill explains, there is nothing to their case.
It is possible to argue, as the architects of the lawsuit originally did, that Congress
may have wanted to make subsidies available on all exchanges, whether operated by the federal government or by the states, but that Congress didn't succeed in doing so because of a "glitch" in the wording of the statute. But that approach--call it the glitch theory--would have greatly weakened their case.
Instead they decided to make a far stronger-- and far more daring--argument. First, they argue that the language denying subsidies on federal exchanges is
both clear and unambigious (so that Chevron deference to the IRS's interpretation does not apply). Second, they argue that the language is clear because it reflected a
deliberate choice by the people who drafted the legislation, if not by
each and every member of Congress who voted for the legislation.
Brill's point is that there is no evidence to substantiate that claim.
I know what the legislators intended because in researching my book, I interviewed pretty much everyone involved in the conception and writing of the law. Moreover, I did that long before King v. Burwell had become the Obamacare opponents’ favorite new weapon, which means that those opponents had no reason to spin the fairytale that Congress did not intend for those subsidies to go to the millions of Americans signing up on the federally run exchange. At the time, no one had a dog in a fight over congressional intent, because there was no fight.
I also reviewed reams of internal emails and memos generated by congressional staffers working for both Democrats and Republicans. In no document from start to finish, in a legislative process that spanned more than two years, is there even a hint of anything but the unambiguous assumption that the law, whose first section is titled “Quality, Affordable Health Care for All Americans,” would indeed provide these insurance subsidies for all Americans who needed them.
In short, I had a catbird seat for doing exactly that kind of fact-based reporting that anyone judging a case like this — reporters, as well as judges — should do. But I didn’t appreciate it because neither I nor the people I was interviewing had any expectation that this case would become something the Supreme Court would take seriously.
Indeed, when I mentioned the case to several of those sources during the spring and summer of last year, all of them – Democrats and Republicans – did some version of an eye roll. This is why there is only scant mention of the case in my book, the draft of which was completed before the court took the case.
I’ve now gone back and looked at my notes and can report that I interviewed 21 congressional staffers and members last year in my effort to reconstruct the day-by-day narrative of how Obamacare happened. None ever mentioned the possibility that the subsidies did not apply to the states in the federal exchange.
On the contrary, everything they told me — and all of the contemporaneous emails and other internal documents I reviewed — assumed that the federal exchange would simply be a substitute for a state exchange if a state decided not to launch its own, and that the same rules would apply.
Brill repeatedly refers to legislative intent in his discussion. King v. Burwell is being fought primarily on textualist grounds, rather than on grounds of legislative intent. Even so, the petitioners have not thought it enough merely to argue that the text is clear and admits of no other reasonable construction. That is because the government has an equally viable textualist argument-- that the meaning of the terms in the statute must be understood in the context of the statute as a whole. If we take the entire text into account, petitioners must deal with the fact that there is more than one reasonable construction. (Indeed, my own view is that, because of the havoc it would wreak on the entire statutory scheme, the petitioners' construction is not reasonable. Moreover, as Marty points out above, the federalism and avoidance canons would also support the Government's construction.).
To meet the government's textual argument, the petitioners must do more than point to one small portion of the text. They must argue that the language of the statute reflects a clear purpose to deny subsidies for health insurance if states did not create their own exchanges. That argument, however, brings the question of Congress's purpose back to the forefront of the litigation. The question of Congress's purpose is, as Brill says, a question that can be addressed through gathering evidence about the real world. And there is no evidence that Congress actually wanted to threaten states that it would withhold tax subsidies unless states created their own exchanges. Petitioners' account of Congress's purpose, Brill concludes, is simply made up. Posted
by JB [link]