an unanticipated consequence of
Jack M. Balkin
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
The Next Wave of Court Challenges to Obama’s Legacy—Part One: The Meaning of King v. Burwell
Simon Lazarus Chief Justice John Roberts sent President Obama off for the July 4 holiday in what must have been a good mood, secure that his signature legislative accomplishment, the Affordable Care Act, had survived a second lawsuit designed to cripple it.In King v. Burwell, Roberts had mobilized a 6-3 majority to reject a claim by health reform opponents that ACA-prescribed tax credits were not available on federally run exchanges.In addition to helping secure Obama’s legacy, the decision evidently bumped up Obama’s public approval ratings. But the celebration must be tempered.This big win is not the President’s doing, nor that of the Executive Branch he controls.Instead, it was due to two conservative justices, the Chief and Associate Justice Anthony Kennedy, whose agendas, while generally divergent from his, meshed on this important occasion.How often will these stars align again?
That question is not academic.King v. Burwell is by no means the last case in which the President’s political opponents are seeking to cancel or gut his key initiatives.Indeed, two currently await decisions in lower federal courts. The first lawsuit is Texas’ challenge to the Administration’s immigration policy—to defer, on a case-by-case basis, removal of some four million undocumented immigrants who do not fall within DHS priorities for enforcing the nation’s immigration laws. The second lawsuit is House Republicans’ challenge to significant components of the administration’s ACA implementation.A third challenge, to the EPA’s proposed Clean Power Plan —the crown jewel of Obama’s anti-global warming agenda— is likely when its regulations are finalized in early August.
Over the next three days, I’ll discuss the upcoming challenges to Obama’s policy agenda. I begin, however, with a discussion of what Chief Justice Roberts’ opinion in King v. Burwell might mean for these lawsuits, and others that may follow them.
How will conservative Supreme Court justices and lower court judges respond to further attempts by conservative advocates to derail Obama’s legacy?Clues to that question may be found in the King v. Burwell decision itself.Roberts’ opinion, for himself, Kennedy, and the four liberal justices – Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan – seemed to alter the rules of Chevron deference for interpreting high-impact laws like the ACA. Roberts asserted that the Judiciary, not the Executive Branch, will get the decisive say on questions of “deep economic and political significance . . . central to . . . statutory scheme[s].”Given that the Court’s 5-person conservative bloc includes four of the most conservative justices in the past 70 years , this self-empowerment might portend ominous consequences for progressive programs.Yet the Chief Justice sketched out how he anticipates the Judiciarywill operate in the future; and his instructions, if followed, could mitigate these concerns.
Roberts laid down two markers, both at odds with the views of the three hard-line conservative colleagues who dissented in King v. Burwell (Justices Scalia, Thomas, and Alito), as well as the views of kindred lower court judges and conservative legal activists.
First, Roberts sought to ward off perceptions that the Court is becoming politicized, by signaling future inhospitality to “implausible” cases fabricated to urge courts not to “respect the role of the Legislature” and “undo what it has done.”Making indelibly clear that King v. Burwell was just such a case, he described the challengers’ argument as a “winding path of connect-the-dots” assertions that made “the viability of the entire Affordable Care Act turn on . . . a sub-sub-sub section of the Tax Code.”“We doubt,” he explained, “that is what Congress meant to do.”As I have written elsewhere, Roberts’ thinly veiled warnings against political attacks dressed up as legal claims appear to follow up his intent, expressed in November of last year, to avoid having “polarization” in the political branches “spill over and affect” the Court. That “spill over” concern is not just a matter of perceptions.In truth, the King lawsuit represented an extension of radical conservatives’ pull-out-all-stops, no-compromise approach to sabotaging the ACA (and other Obama initiatives) at all levels of government, wherever opportunities turn up.In King Roberts signaled that he doesn’t want the federal judiciary to be part of that game.
Second, Roberts offered an elaborate and distinctive, blueprint for divining the meaning of complex laws like the ACA.As Abbe Gluck has explained, Roberts wrote a “game-changing statutory interpretation opinion.” Implicitly, but pointedly, he sidelined the hyper-literalist brand of“textualism” long touted by Justice Scalia and conservative allies – frequently used to justify narrowly reading individual words or phrases in isolation, out of context (as in King v. Burwell itself). The frequent result has been, as former Justice John Paul Stevens repeatedly charged, to “skew interpretation,” and “defeat the purpose for which a provision was enacted.”In concluding his rejection of the challenge to ACA tax credits, Roberts announced: “A fair reading of legislation demands a fair understanding of the legislative plan.”(emphasis added)With this word “plan,” a term heretofore unknown in statutory interpretation lawyerspeak, the Chief Justice described an interpretational lodestar plainly distinct from Scalian preoccupation with dictionary meanings of particular words or phrases. On the other hand, Roberts’ “legislative plan” terminology could seem more tightly tethered to a law’s architecture and, especially, its operational design than legislative “purpose” or “intent” – terms favored by Justice Stevens and his (mainly progressive) judicial and academic “purposivist” allies, but which many conservatives deride as vague excuses for judges to impose their own (implicitly, progressive) preferences.Roberts’ operational focus is evident throughout his King v. Burwell opinion – starting with its terse introductory sentence: “The Patient Protection and Affordable Care Act adopts a series of interlocking reforms designed to expand coverage in the individual health insurance market.”(emphasis added)The opinion goes on to detail how the particular “interlocking reform” under challenge in the case – tax credits and subsidies for eligible exchange purchasers – is integral to other essential components, namely, mandating insurers to cover all applicants regardless of their health status, and mandating individuals to buy insurance or pay a tax penalty.Because of this underlying “plan,” Roberts said, “It is implausible that Congress meant the Act to operate” with no tax credits available in states that opted to let the federal government operate their exchanges.
By thus directing judges to look beyond the words of a statute to figure out what the legislature could plausibly have meant, the Chief Justice has conspicuously challenged Scalia’s status as the central conservative thinker about “Reading Law” (the title of the 567 page treatise that Scalia co-authored in 2012).More important, Roberts’ prioritization of fidelity to the legislature’s “plan,” in tandem with his professed aversion to cases that invite perceptions of a politicized judiciary, should – if faithfully followed (a scenario by no means guaranteed, of course) – significantly affect the next wave of litigation threatening to major Obama initiatives. In the next few days, I’ll explain how.
Simon Lazarus is Senior Counsel to the
Constitutional Accountability Center. You can reach him by e-mail at
simon at theusconstitution.org