The Argument That Wasn’t

Guest Blogger Abigail R. Moncrieff of the Boston University School of Law and a speaker at the Petrie-Flom Center’s “King v. Burwell and the Future of the Affordable Care Act” conference on April 1 has a new piece up at the Health Affairs Blog discussing the Supreme Court’s decision. From the piece: 

Last Christmas, I spent a somewhat panicky inter-semester break writing an amicus brief for King v. Burwell. I was worried that five Supreme Court justices were going to be too tempted by the plaintiffs’ legalistic interpretation of Obamacare’s text, despite ample evidence beyond the text that Congressnever intended to deprive citizens in 34 states of health insurance subsidies.

In a seminar I taught at Boston University, one of my students had proposed a legalistic version of the common sense point that Congress could not possibly have intended the plaintiffs’ result—a legalistic argument that could be fatal to the plaintiffs’ case but that the government could not make—and I decided to spend my break writing and submitting it. […]

Read the full piece here.

King of the Tribe

Larry Tribe is stirring up trouble, and to do it, he’s relying in part on an argument I made (and Justice Kennedy seemingly adopted) in King v. Burwell. But Tribe’s King isn’t at all the same as my King. (And we don’t yet know what the Court’s King will look like.) Here’s the story.

In arguments before the D.C. Circuit on April 16, Tribe argued on behalf of several private and state intervenors that the EPA’s proposed Clean Power Plan exceeds the agency’s jurisdiction. The proposed rule would require states to enforce tough limits on their power plants’ carbon dioxide emissions, but if any state didn’t want the regulatory task, the Clean Air Act (CAA) would allow that state to turn the regulatory regime over to federal regulation within the state’s borders. In addition to arguing that EPA lacks jurisdiction to regulate power plants under the relevant statutory provision (CAA § 111(d)), Tribe argues that the proposed rule would violate the anti-commandeering doctrine by giving states a Hobson’s choice; either they must incur extreme regulatory costs themselves, or they must turn over their power systems to an undefined federal regulatory scheme that is, practically speaking, very unlikely to function well. No rational state, Tribe argues, would choose the unknown and likely dysfunctional federal scheme, especially in a realm as important and sensitive as electric power.

In testimony before the House Energy and Commerce Committee and in an online debate with his Harvard Law School colleagues Jody Freeman and Richard Lazarus, Tribe has analogized his anti-commandeering argument to the anti-coercion questions that Justice Kennedy asked in King (questions that seemed to arise from my amicus brief). Tribe’s point, as far as I can tell, is that the federal government is threatening the states with a federal fallback option that is likely to wreak havoc on the states’ energy systems.

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On Constitutional Remedies in King v. Burwell

There is one concern about the JALSA brief that I have not yet addressed because I don’t think it’s relevant: If the Court invalidates the IRS Rule and then decides the constitutional merits and holds that the condition on subsidies is unconstitutionally coercive (as I argue it might be), what will the remedy be? Will the Court invalidate the whole statute? I haven’t addressed this question because I think there is no chance that the Court will decide the constitutional merits in this case. But Randy Barnett raised the question a few days ago, and now Josh Blackman has piled on with an argument that a constitutional holding would and should nullify the whole statute. As a predictive matter, I just don’t think that’s right. Even if the Court reached the constitutional merits at some point (which I don’t think they ever will), I think they’d sever the condition.

Josh’s analysis on this point arises from one thing and one thing only: Four justices joined an opinion in NFIB (without telling us who wrote it) in which they argued against severability of the Medicaid condition. Those four justices would have invalidated the whole statute on its first trip to the Supreme Court.

Okay, sure. But what does that tell us? Read More

Two More Points on Federalism in King v. Burwell: A Response to Ilya Somin

And the storm rolls on… Ilya Somin has now responded to my response to him, and he correctly notes that I failed to confront his core point. (I was more focused on responding to Rick Hills and Jon Adler.) Ilya’s beef with the application of the anti-coercion argument (via the avoidance canon) in King is that he views it as nonsensical to apply anti-coercion in a way that expands federal power and limits state choice. In Ilya’s view, the plaintiffs’ interpretation in King is the one that better preserves state freedom because it allows states to pick the federal regulatory bundle that they like better. The IRS’s interpretation, by contrast, imposes a uniform regulatory bundle throughout the nation, and leaves the states free to choose only with respect to some relatively minor details of exchange implementation and management. I respond to this line of thinking at length in the JALSA brief, arguing several reasons that states’ freedom to choose under plaintiffs’ interpretation fails to mitigate the constitutional difficulties.

But in a grander sense, Ilya’s perspective is (to put it mildly) simply inconsistent with constitutional federalism doctrine (as he seems to admit). Read More

On Federalism and King: A Response to Critics

[This post has been edited to reflect corrections received by email from Jon Adler, whom I sincerely thank for his thoughtful engagement.]

Federalism is in the air again—once again surrounding Obamacare’s financing structure—and some people are surprisingly surprised. Given Justice Kennedy’s questions at oral argument, it’s become quite clear that King v. Burwell is about federalism, and a couple of conservative commentators have written blog posts that amount to a cry of, “I am shocked—shocked—to find federalism issues in this case.”

Of course the case is about federalism. It has always been about federalism. The only thing that the JALSA brief (which I authored)—and Kennedy’s questions arising from that brief—have added to the case is the point that constitutional federalism cuts in the government’s favor, not the plaintiffs’. Perhaps political federalism cuts in the plaintiffs’ favor—if we join Jon Adler, Michael Cannon, and Michael Carvin in their extended daydream about Senator Ben Nelson’s intent—but constitutional federalism obviously supports the IRS’s interpretation (via the canon of constitutional avoidance as well as canons urging preservation of the traditional federal-state relationship and requiring clarity in the communication of conditions). Read More

3 Reasons Not to Worry About an Avoidance Holding in King v. Burwell

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) Read More

Which Avoidance Holding in King v. Burwell?

In Wednesday’s oral arguments, Justice Kennedy seemed highly tempted by a constitutional avoidance argument in King v. Burwell. Although Kennedy’s questions provide some optimism for the government, they have also caused some confusion and consternation. The confusion arises because three different amicus briefs presented constitutionally-motivated arguments (including one that I wrote), and it wasn’t totally clear which argument Justice Kennedy was pursuing. The consternation arises, particularly among liberal commentators, because they worry about a holding that centers on constitutional problems. The biggest concern seems to be that an avoidance holding in King would set dangerous precedent for federalism’s future.

Here, I’ll address the confusion. (In a second, I’ll address the consternation.) On the confusion: I’m entirely sure that Justice Kennedy’s questions arose from the JALSA brief rather than the other two. Here’s why. Read More

The Newtown Tragedy: Today’s Need for Common-Sense Rhetoric and Regulation

I grew up in a family of gun hobbyists.  One of my older brother’s most treasured Christmas presents from childhood is a rifle that was used in WWII; my dad had a collection of several dozen handguns, shotguns, and rifles, including a semi-automatic AR-15 “assault rifle” and a pearl-plated revolver and holster that he bought with a “Sheriff” badge just for fun; my younger brother is an ex-Marine. Throughout childhood, I spent every weekend of hunting season (and many summer weekends besides) on a West Texas ranch, shooting dove, quail, ducks, and exploding targets attached to grapefruits and ice blocks. And when I went to babysit my niece and nephew for a week in Austin, my brother’s first task was to show me where all of the house’s handguns were kept and how to open the safes he kept them in.

I don’t own a gun myself, and I don’t have any plans to get one. But I understand the utility of guns for both recreation and defense. Of course, as a scholar of health law and constitutional law, I also understand how complex the questions are that guns present for public health and individual liberty. But, as usual, my sense is that there is an obviously correct approach to those complex questions: an approach that seeks balance and optimization. A ban isn’t the right answer, from a policy or constitutional perspective, but in light of the very real dangers that guns present, neither is a strong Second Amendment bar to regulation. Of course, this view represents the current state of the law in both legislation and Supreme Court precedent; the balanced view is inconsistent only with the debate’s heated rhetoric. Here are a few thoughts:

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Taking Liberties (and Libertarians) Seriously

By Abby Moncrieff

First, an uncontroversial statement: Despite academics’ resistance, libertarian arguments played a huge role in the Supreme Court’s Obamacare decision. That seems obvious. Chief Justice Roberts and the four dissenters based their Commerce Clause analyses largely on notions of individual freedom, asserting that the federal government should not be allowed to force individuals to purchase private products.

But to heath scholars, that line of analysis is incredibly irksome and even a bit dissonant. Health insurance isn’t like ordinary private products, we cry; it is intimately connected to health care regulation, and forcing people to have health insurance, unlike forcing them to buy (or even eat) broccoli, will make them healthier! Congress made this point explicitly, finding that “[t]he economy loses up to $207[ billion] a year because of the poorer health and shorter lifespan of the uninsured”! Failing to eat broccoli doesn’t make you unhealthy the same way that failing to carry insurance does, especially if you’re substituting broccoli with green beans instead of donuts. And eating broccoli doesn’t make you healthy the same way that carrying insurance does, especially if you’re also eating steaks (or eating more than 2000 calories a day of pure broccoli). So, Supreme Court, you just got it wrong. The individual mandate isn’t a crass attempt to get people to buy something. It is, like countless other uncontroversial provisions of the U.S. Code, an attempt to improve the health and longevity of the American people. If you don’t think Medicare (or a Certificate of Need law) infringes liberty, you shouldn’t think the individual mandate does.

Here’s the problem: The Solicitor General didn’t make that argument.

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