Oral argument in King v. Burwell (Obamacare subsidies) is tomorrow 3/4.
Abbe Gluck (Yale) has this interesting article at Politico: King v. Burwell Isn’t About Obamacare; It’s all about states’ rights—but the plaintiffs would rather you didn’t know that. She mostly argues that Congress did not intend to limit subsidies to state exchanges because that would be too coercive of the states:
The challengers’ interpretation turns Congress’s entire philosophy of states’ rights in the ACA upside down. Congress designed the exchanges to be state-deferential—to give the states a choice. But under the state-penalizing reading that challengers urge, the ACA—a statute that uses the phrase “state flexibility” five times—would be the most draconian modern statute ever enacted by the U.S. Congress that included a role for the states. What’s more, if interpreted as the challengers hope, the ACA would have been debated, enacted and implemented for two whole years under intense public scrutiny, including the scrutiny trained on it during the last major constitutional challenge in the Supreme Court in 2012, without anyone—no state, congressman or blogger—noticing these consequences or objecting to them.
A brief filed by Virginia and more than 20 other states attests that any clue of the dramatic penalty the challengers have read into the statute was entirely lacking. In the end, King is about whether an invented narrative that only emerged for purposes of this case should be permitted to work the greatest bait and switch on state governments in history.
(By assumption, then, we should interpret the ACA according to its original intent).
But here is an eloquent account from an opposing perspective, by James Blumstein (Vanderbilt), guest-posting at Volokh Conspiracy, who sees the case as principally about separation of powers: The Administration, the IRS and the ACA: Will the courts rein in the president’s pen?:
… [T]he ACA clearly provides notice to states that their decision to establish an exchange is a prerequisite for subsidies for their residents. Secondly, states are not foreclosed from establishing an exchange so as to allow their residents to qualify for a subsidy. There is no bait and switch as there was with expanded Medicaid. The state exchanges reflect an entirely new program. If a state misapprehended the stakes for not running an exchange, it can rectify that mistake now. As long as states can still set up an exchange, the alleged lack of notice to states about the consequences of not establishing an exchange can be remedied. King is nothing like the expanded Medicaid case in this regard, as far as the clear notice rule is concerned.
The lower court in King ruled for the government, basically on the theory that the ACA intended to subsidize those income-qualified purchasers who buy insurance on all exchanges. But the issue is not some abstract question of what Congress intended, but what Congress actually did. And about that there can be no serious dispute. The Supreme Court should rein in the IRS by invalidating its regulation to the contrary.
Posted at 6:48 AM