At Cato at Liberty, Ilya Shapiro: Obamacare and the Rule of Law (discussing this brief filed on behalf of the Cato Institute and Professor Josh Blackman in King v. Burwell, the health care subsidies case). From the conclusion:
In King, which will be argued on March 4, the Supreme Court should address the president’s disregard of Congress and belief that legislative gridlock allows him to transcend his constitutional authority. A ruling that upholds his behavior sets a dangerous precedent for the nascent ACA superstatute, which will be implemented for years to come by administrations with different views of the law. More troubling, such a precedent could be used in future to license virtually any executive action that modifies, amends, or suspends any duly enacted law.
And here is the brief's Summary of Argument:
This case is about much more than statutory interpretation and Chevron deference. It is about the separation of powers and the rule of law. The Patient Protection and Affordable Care Act (ACA) is the most wide-ranging law of our young century. Through the ACA, Congress sought to transform the way Americans access health insurance. In many places, Congress gave the executive branch broad latitude to decide how best to implement the law. For the law’s most important parts, however—the “three-legged stool” of coverage rules, mandates, and subsidies— Congress spoke precisely, providing specific dates, formulas, and directions for implementation.
First, an individual mandate was imposed to penalize certain people who do not maintain “minimum essential coverage” after January 1, 2014. Second, an employer mandate was designed to penalize certain employers who do not offer such comprehensive insurance to their employees after that date. Both mandates were structured to offset the cost of the “minimum essential coverage” for virtually all Americans. Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2585 (2012) (“NFIB”) (“This allows insurers to subsidize the costs of covering the unhealthy individuals the reforms require them to accept.”). Finally, and most relevant here, an elaborate schedule of subsidies was appropriated for states choosing to create exchanges—Congress could not command states to establish them—to assist those who lack employer-sponsored insurance. Again, the subsidies were designed to offset the cost of providing minimum essential coverage” for millions.
In what has become a troubling pattern of abuse, the executive branch has modified, delayed, and suspended these three pillars of the ACA. None of these provisions have gone into effect as Congress designed because they conflicted with the president’s policy preferences. Through a series of memoranda, regulations, and even blog posts, executive officials have disregarded statutory text, ignored legislative history, and remade the law on their own terms.
Executive lawmaking—which has alas become commonplace—poses a severe threat to the separation-of-powers principles that undergird the Constitution and ultimately the rule of law itself. Accordingly, this Court should vacate the IRS rule that provides subsidies in states that did not establish exchanges. This rule violates Congress’s limitation of such subsidies to insurance bought through exchanges “established by the State.”
Josh Blackman has further comments here.
Posted at 6:05 AM