Of the three constitutionally-motivated arguments that amici presented in King, the argument that Justice Kennedy picked up on (which I wrote) is the most aggressive and the riskiest from a liberal perspective. As a result, several commentators have expressed concerns about what’s coming in June. But there are 3 good reasons not to worry.
What’s the Concern?
The most alarmist worry is that the Court will take the JALSA brief‘s anti-coercion argument as a constitutional attack (rather than a statutory argument under the avoidance canon, which is what it is). The worry is that the Court will use the JALSA brief to invalidate the whole statute. Less alarmist commentators worry that an anti-coercion holding, even when issued under the avoidance canon, would set precedent they don’t like, limiting the power of the federal government to incentivize states. A non-alarmist version is that the other constitutionally-motivated arguments are sufficient bases for holding in the government’s favor, and the anti-coercion argument, at a minimum, requires the Court to venture unnecessarily into dangerous constitutional waters.
Reasons Not to Worry (if you like Obamacare)
1. The JALSA argument is either necessary or harmless.
The most important point is that the anti-coercion argument will not set any precedent unless it’s necessary to the outcome of the case. In a simplistic sense, that’s true of every argument the Court makes; the definition of nonbinding dictum—the opposite of precedent—is argumentation that’s unnecessary to the outcome. But in a more nuanced sense, this point is profoundly true of this particular argument, in this particular case, given this particular Court. If the liberal appointees have enough votes to sustain the government’s textual and structural theory of the statute (if Chief Justice Roberts joins them, say) or even if Kennedy is not 100% insistent that avoiding coercion is the only reasonable ground for holding in the government’s favor, then someone other than Kennedy will write the majority opinion. Kennedy’s anti-coercion argument will come in a nonbinding concurrence.
If, however, Kennedy refuses to join the liberals unless he’s allowed to write a majority opinion centering on anti-coercion, then we can be sure that the anti-coercion argument was entirely necessary—utterly indispensable—to Obamacare’s victory. Whatever the fallout might be of that result, the question will have to be whether it’s worse than insurance market death spirals in 34 states.
2. Avoidance holdings (usually) do not set constitutional precedent.
The second crucial point is that the JALSA argument is not that Obamacare is unconstitutional. It’s not even that the plaintiffs’ interpretation is unconstitutional. It has three parts: (1) The plaintiffs’ interpretation might be unconstitutional. (2) The question of whether it is in fact unconstitutional would be hard to resolve. And (3) a holding for the government would allow the Court to avoid the hard question of the statute’s constitutionality. If the Court agrees with those three points, then it will have held only that the specter of unconstitutionality is a good reason not to venture in the plaintiffs’ direction. Indeed, in past cases, the Court has used the avoidance canon to dodge a constitutional question that it has later decided is not actually a constitutional problem. In those cases, the avoidance holding clearly did not create constitutional law.
The one caveat to this point is that Roberts seems more inclined to follow an older form of the avoidance canon, under which he decides that a particular interpretation is in fact unconstitutional before agreeing to avoid it. That’s what he did in NFIB when he held that the individual mandate is a tax rather than a penalty. He didn’t interpret the provision as a tax until he’d already decided—in an opinion that looks binding even though it might technically be dicta—that the mandate would be unconstitutional under the Commerce Clause.
But, of course, the star of the King arguments was Kennedy, not Roberts. Kennedy typically uses standard avoidance, which would not set constitutional precedent.
3. The risk of constitutional invalidation in this case is infinitesimal if not nonexistent.
The nightmare scenario that some Tweeters and friends have raised is that the Court will read my brief and think, “Hm. That’s right. The plaintiffs’ interpretation, which is clearly the only correct interpretation, is unconstitutional. We shall kill the whole thing.”
Although some courts somewhere might be that power-hungry and insane, this one is not. For this scenario to play out, all five conservative justices would have to join an opinion that decides constitutional merits not properly before them. They would all have to agree to violate their own jurisdictional limitations in one of the most highly-watched cases of the term. Even if Justices Scalia, Thomas, and Alito were willing to pursue their political agenda at the expense of the Court’s legacy, Roberts would not be. Roberts did some creative work to avoid invalidating Obamacare on its first trip to the Court, and all of that work would be more than undone if he invalidated the same statute in a case that did not properly authorize him to do so.
The worst case scenario here is that the five conservatives will hold that the plaintiffs’ interpretation is right and unavoidable, and they will use the JALSA brief to express serious doubts as to the statute’s constitutionality. That opinion would be a strong signal to conservative litigants that they could kill the whole statute by bringing another constitutional case. If that happened, it would admittedly be bad. The only silver lining would be that we would have about three years and a new President before such a case reached the Court—and a lot can change. But, given the judicial philosophies that Kennedy and Roberts have pursued in their careers so far, I doubt that the Court will write such an opinion. If they think the constitutional merits are serious, they will interpret the statute to avoid them.
Final Thought
I agree with Abbe Gluck and Nick Bagley that the Court shouldn’t need avoidance to hold in the government’s favor. But, knowing the conservative justices, it is a serious problem that a pro-government holding would render the words “by the state” superfluous, and I’m worried that the anti-coercion argument is the only thing that can overcome that serious problem. Both the Pennhurst and Bond arguments depend on an assumption that Congress wasn’t clearly and obviously trying to punish states for failing to set up exchanges. The conservatives will reject that assumption if they believe the text is sufficiently clear. But for Kennedy and Roberts, even clear text is sometimes avoidable through interpretation if the constitutional stakes are sufficiently high. So, given that we need one of their votes, it might be totally necessary to convince them of high constitutional stakes.
“By the state” is not superfluous: https://languagelog.ldc.upenn.edu/nll/?p=18039
That’s fantastic analysis, Graham, and you’re probably right. I wish someone had made that argument to Justice Scalia. One thing: Wouldn’t the government still need to change “by” to “in” for that to work?
The government made the argument that the words “established by the State” are not superfluous in its brief (page 33) and visited it in oral argument (page 61). Per your concern, Alito asked the SG why the drafters didn’t write “in the State” instead. Verrilli responded that they could have, but that the chosen phrase works just as well – and it does, so long as one accepts that the government three-step (1563(b)-1321(c)-1311(d)(1)) establishes sufficient legal and functional equivalence between the State- and HHS-run Exchanges. Unfortunately, Scalia called that manoeuvre “gobbledygook” – so I’m guessing he will be unmoved by the finer points of anaphoric relations.
I read Graham’s analysis a little differently. It’s not depending on all the nested provisions but rather the reference back to the “a State” mentioned earlier in the very same part of s 36B. He’s not asking the Court to look beyond s 36B to make sense of the phrase. I was also wondering whether he had a professional linguistic answer to the “by/in” distinction.
After Shelby County, it is difficult to believe that the conservative majority is bound by any quaint notions of “rule of law.” Kennedy, maybe, is still trying to be a judge. The others are just skillful partisan hacks. Roberts takes a bit more of a long-term institutional view than his fellow hacks. But he’s still a hack. Briefing will not change any of their votes, except maybe Kennedy’s.
My only prediction in this case is that Roberts will not be the sixth vote to uphold the subsidies. He might be the fifth, but if Kennedy swings, Roberts will try to regain some Movement mojo by voting against the ACA.