At Dorf on Law, Michael Dorf: Fish, Health Insurance, and Overcriminalization: A Comment on Yates v. United States. Here is an excerpt:
What are the implications for King? There the question is how much of the broader linguistic context and background congressional purpose should be deemed relevant to construing the seeming limitation of federal subsidies for "an Exchange established by the State." Under the methodology applied by the plurality in Yates, the answer would appear to be "a lot of it." That's important because the vote of one of the conservatives is needed to get to five, and based on his vote in NFIB v. Sebelius, CJ Roberts appears to be the most likely one.
Nor is the Chief's Yates vote a fluke. He is probably the least textualist, most intentionalist of the current conservatives when it comes to statutory interpretation–as also indicated by his opinion for the Court last year in Bond v. United States (as I discussed here and in a column and other posts linked therein). The government should win in King, unless (as I put it last July) textualism runs amok. Yates confirms that CJ Roberts is barely a textualist at all, much less a textualist run amok.
But if Yates is potentially good news for the government about the Chief's statutory interpretation predilections, might it also be unexpected bad news about Justice Kagan–whose vote had almost surely been counted as nearly certain to find that subsidies are available in King? After all, Justice Kagan wrote the Yates dissent for herself and Justices Scalia, Kennedy, and Thomas. She (and they) found that the plain language prevailed.
Posted at 6:22 AM