"This is a straightforward case of statutory construction where the plain language of the statute dictates the result," began the counsel for the anti-ACA plaintiffs today, but nothing, nothing is that simple.
The case turns, as Justice Scalia mused, on the reconciling the difference between the statute Congress intended, and the one which it enacted, and whether an obscure four-word phrase should be given the power to blow the whole thing up. "Is it not the case," he asked, "that if the only reasonable interpretation of a particular provision produces disastrous consequences in the rest of the statute, it nonetheless means what it says. Is that true or not?"
Hopefully, the answer is "not." Indeed, the most likely outcome from today's oral argument in King v. Burwell, as my fellow analysts agree, is that Justice Kennedy will provide a fifth vote (and possibly the Chief a sixth) for upholding the ACA subsidies—but doing so through the employment of a legal doctrine which liberals generally detest, the idea the federal government shouldn't have too much power in coercing the sovereign states. As Kennedy noted to the plaintiffs' lawyer:
Let me say that from the standpoint of the dynamics of Federalism, it does seem to me that there is something very powerful to the point that if your argument is accepted, the States are being told either create your own Exchange, or we'll send your insurance market into a death spiral. We'll have people pay mandated taxes which will not get any credit on -- on the subsidies. The cost of insurance will be sky-high, but this is not coercion. It seems to me that under your argument, perhaps you will prevail in the plain words of the statute, there's a serious constitutional problem if we adopt your argument.
How we avoid that problem, below the orange gnocchi.
Justice Kennedy restated his concerns when Solicitor General Donald Verrilli argued for the government. Verelli tried to dodge the question of whether he agreed that the coercion issue rendered that reading unconstitutional, calling it a "novel question," leading to this colloquy:
JUSTICE KENNEDY: Is it a -- I was going to say does novel mean difficult?
(Laughter.)
JUSTICE KENNEDY: Because it -- it -- does seem to me that if Petitioners' argument is correct, this is just not a rational choice for the States to make and that they're being coerced.
GENERAL VERRILLI: So what I --
JUSTICE KENNEDY: And that you then have to invoke the standard of constitutional avoidance.
A standard which basically says, "if it looks like Congress passed something unconstitutional, see if there's a way to interpret it to avoid the constitutional problem." And in this case, that's by allowing for subsidies on the thirty-four insurance exchanges set up by the federal government instead of by the states.
Justices Sotomayor and Ginsburg, moreover, articulated the quite plausible argument that if Congress really intended to be this coercive, they'd have been clearer about it as a matter of statutory structure and text:
SOTOMAYOR: You're talking about Congress, how -- hiding, borrowing the phrase of one of my colleagues, a -- a -- a huge thing in a mousetrap. Okay? Because do you really believe that States fully understood that they were not going to get their citizens were not going to get subsidies if they let the Federal government? What senator said that during the hearings?....
GINSBURG: It's a tax code provision that's an implementation provision. It tells you how you compute the individual amount. ... It -- it's not in the body of the legislation where you would expect to find this.
This was a long, wonky, sometimes impenetrable argument about the various nooks and crannies of the statutory text, and I don't think it's that worth going into on a line-by-line basis. As we saw last time the ACA was before the court,
really smart people can spend too much time reading the public tea leaves while the judges brew their own deals in the conference room. Last time, it was the Chief Justice holding together a surprising majority, and, gosh, he was awfully quiet today.
So we wait.
In the meantime, I want to leave you with this exchange, and I don't know whether to be annoyed that Scalia might actually believe this, or that he thinks the fates of millions of the uninsured is worth a sarcastic comment:
JUSTICE SCALIA: What about -- what about Congress? You really think Congress is just going to sit there while -- while all of these disastrous consequences ensue. I mean, how often have we come out with a decision such as the -- you know, the bankruptcy court decision? Congress adjusts, enacts a statute that -- that takes care of the problem. It happens all the time. Why is that not going to happen here?
GENERAL VERRILLI: Well, this Congress, Your Honor, I -- I --
(Laughter.)
GENERAL VERRILLI: You know, I mean, of course, theoretically -- of course, theoretically they could.
JUSTICE SCALIA: I -- I don't care what Congress you're talking about. If the consequences are as disastrous as you say, so many million people without -- without insurance and whatnot, yes, I think this Congress would act.
[Justice Alito also suggested the possibility of delaying the impact of a contrary ruling until the end of the tax year, to allow Congress to fix the statute or for the 34 states to set up changes, the latter of which Verrilli called "completely unrealistic".]
Expect a ruling in late June.