Category: Abby Moncrieff

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

[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

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