Assorted last-minute pre-argument thoughts on King v. Burwell

Insufficiently chastened by my embarrassingly inaccurate pre-argument assessment of Yates v. United States, I thought I'd share a few pre-argument thoughts on King v. Burwell. Once the arguments take place, it is very difficult to recover the frame of mind one had about what the Justices ought to have thought after exposure to what they actually think (or at least appear to think as of the time of argument). But preserving this pre-argument frame of mind for later re-examination can helpfully contribute toward calibrating one's assessments as a lawyer about the kinds of arguments that have currency at the Court at any given moment in time. This is not to say that "currency at Court at any given moment in time" is the only, or the best, or even a reliably sound measure of what makes for a good legal argument all things considered, but having a sense of what the various Justices believe to be good arguments at any given moment in time is important enough to be worth being wrong about. 

To slough off all but the most intrepid of readers (if I haven't already), I'll begin with a meta-meta-meta-point about law professor commentary on King v. Burwell. The prompt is Paul Horwitz's post about what he calls "Randy Barnett's latest ref-working post." As typical of his meta-meta-posts, Paul's post about Randy's meta-post contains much to agree with. His identification of many other reasons--besides "ref-working"--that legal academics and legal journalists write commentaries of the sort that Randy criticizes is helpful and accurate as far as it goes. But when Paul turns (in his point 5) to "what Randy himself is engaged in doing," he submerges the simplest and best explanation, which is that Randy is sincerely and appropriately concerned that Chief Justice Roberts buckled in NFIB v. Sebelius and made a legally wrong decision out of misplaced concern for the perceived legitimacy of the Supreme Court. Randy does not want this to happen again; he worries not only that other people do, but also that they are working to bring that about, so he tries to counter it even while recognizing the likely futility of such an enterprise given his view of what happened in NFIB v. Sebelius. (If this explanation of Randy's reason for writing is accurate, I disagree with Randy on this point, but I realize why he would think I am wrong and he is right about this. Planned Parenthood v. Casey stands as a monument to various Justices' capacity to make a legally wrong decision out of misplaced concern for the perceived legitimacy of the Supreme Court.) Sure, Randy's post "can be read" as "an indirect, passive-aggressive way of flattering and threatening the Chief by reporting on the attempts of 'the left' to flatter or threaten the Chief." But much "can be read" many ways (as Paul recognizes elsewhere throughout his post), and I draw a different lesson in this meta-meta-meta commentary. (WARNING: "moral sermonizing" ahead.) Most of us can't shake the idea that the Justices are and ought to be "refs," even--and especially--in cases like King v. Burwell. And that is a good thing even while we shouldn't let our attachment to this idea unduly influence our assessments of the extent to which they actually succeed in that role. 

Now for some thoughts on the issues in the case:

1. Having finally read much of the most important Supreme Court briefing in the case and then re-read the D.C. Circuit and Fourth Circuit opinions, I continue to think that Judge Griffith's opinion for the D.C. Circuit in Halbig v. Burwell is the best of the bunch and holds up pretty well.

2. The most powerful underlying (or overarching) influence on Justices of all ideological stripes in this case will probably be perceived in any questioning that reflects the Justices' views about the role of the judiciary vis-a-vis the Administrative State generally (initial caps deliberately portentuous here) and the Administrative State in the Obama Administration more specifically (same). (WARNING: more "moral sermonizing" ahead.) The VC guest post by James Blumstein on King v. Burwell as a separation-of-powers case presents a perspective (with which I largely agree) that many legal academics (with different political persuasions from me) insufficiently appreciate as grounded in good-faith and legitimate legal concern. To understand this perspective only as refracted through a political prism is to miss the political-prism refraction of one's own views about that perspective.

3. Jonathan Adler's argument about the absence of reasoned explanation in the rulemaking by the IRS leading to the challenged rule here resembles my own view about the absence of reasoned explanation for the three categories that emerged in the contraceptive mandate rulemaking (i.e. (1) exempt, (2) non-exempt but accommodated, and (3) non-exempt and non-accommodated). 

4. I don't have a good sense of which way the arguments are likely to go this morning. Regardless of which way the decision ultimately comes out, though, I expect that the opinion for the Court and any other opinions will be more recognizably legal to those who disagree on the bottom line to a much greater extent than, say, the various opinions in NFIB v. Sebelius have been understood as being. This expectation is admittedly impressionistic, based in part on the absence of the same feeling of legal emptiness/dread I experienced on the day of the inseverability arguments in the individual mandate cases.

5. I was surprised to see how heavily the government's brief relies on what might be called "argument by italics" to make its point about the equivalence of state-established and HHS-established exchanges. Here is the argument summary of this point:

Section 18031(b)(1) expressly directs that “[e]ach State shall * * * establish an [Exchange].” But to afford “State flexibility,” the Act further provides that if a State does not or cannot establish the “required Exchange” for itself, then HHS “shall * * * establish and operate such Exchange within the State.” 42 U.S.C. 18041(c)(1) (emphasis added). The term “such Exchange” conveys that an Exchange HHS establishes as a statutory surrogate for a State fulfills Section 18031(b)(1)’s requirement that “[e]ach State” establish an Exchange. For purposes of the Act, therefore, such an Exchange is “an Exchange established by the State under Section 18031.” The Act’s definition of “Exchange” underscores that conclusion by defining the term to mean “an American Health Benefit Exchange established under section 18031.”

(Gov't Br. at 13)

6. While I can see good arguments for the parties' respective positions about the correct meaning of the relevant statutory text, I have trouble accepting that the statutory formula for calculating credits is ambiguous in any sense that should be understood as delegating to an agency the authority to decide whether credits are available on a federal exchange.