Opponents of ACA Trooferism Have Two Elements on Their Side: Law and History

Tim Jost has an immensely valuable round-up of the briefs filed in favor of the government’s position in King v. Burwell. Let me highlight the three briefs that will be most illuminating to interested observers:

The thirty briefs were filed by an extraordinary assemblage of states and state legislators, members of Congress, leading legal scholars, academics from a variety of other disciplines offering a wide range of perspectives, insurers, providers, and patients and their advocates.  By contrast the twenty-one amicus briefs filed last month by the challengers are far more limited in scope.  The challengers submitted briefs signed by a few Republican Congressmen, seven states, and a handful of conservative and libertarian legal scholars.  The rest of their amici were right-wing advocacy groups.

Among the most important briefs is the brief filed by the Virginia attorney general and the attorneys general of twenty-one other states and the District of Columbia.  Ten of the states have federal exchanges and eight have Republican governors.  By contrast, the six states that filed amicus briefs for the challengers are all dominated by Republicans. Tellingly, the biggest Republican federal exchange states, such as Florida, Texas, Wisconsin, and Ohio did not join.

[…]

Several briefs were filed by prominent legal scholars.  A brief filed by William Eskridge, John Ferejohn, Charles Fried, Lisa Marshall Manheim and David Strauss explains why a textualist analysis of the law would compel the Court to rule for the government.  Proper textualism does not single out a single phrase of a law and then try to determine whether a proposed reading of that phrase would render the rest of the law absurd, the approach taken by Judge Griffith in the now vacated Halbig D.C.Circuit decision.  Rather textualism requires the Court to consider the meaning of particular provisions in light of the entire text of the law.

A brief filed by Thomas Merrill, Gillian Metzger, Abbe Gluck, and Nicholas Bagley elaborates the Supreme Court’s jurisprudence mandating that doctrines designed to preserve the nation’s federalist structure should significantly influence interpretation of federal statutes to avoid interpretations that would damage that structure where Congress’ intent is not clear, or interpretations that would, without clear notice, link harmful consequences to choices that statutes offer to states.  Noting that the petitioners’ interpretation would, for states electing federal operation of their exchanges, put individual insurance markets in a worse position than prior to the ACA, the brief demonstrates that the court’s federalism doctrines and precedents compel rejection of petitioners’ interpretation.  In addition, the brief shows that a prohibition on premium tax credits for federal exchanges is inconsistent with the kind of cooperative federalism program represented by the ACA marketplaces.  The brief refutes claims made by the challengers and their amici that a program that would operate the way the challengers characterize the ACA program would resemble other existing federal programs.

The theory of statutory interpretation being advanced by the plaintiffs is foolish and unworkable on its face. Their interpretation of the statute’s history and objectives is transparently wrong. And even if one were to accept their theory arguendo, the denial of tax credits would be unconstitutional. But what else would you expect radical Trotskyites like Reagan’s Solicitor General or Reagan’s Deputy Solicitor General to say?

None of of which is to say that the overwhelming superiority of the government’s arguments will matter. But it’s at least a variable that could affect judicial decision-making. If Roberts thought that an argument that making people pay a tax if they don’t carry insurance isn’t an exercise of the tax power wouldn’t write…it’s not outside the realm of possibility that it will happen again. Certainly, these arguments are substantially worse than the ones advanced by opponents of the ACA in Sebelius.

As a coda, enjoy this from Michael Cannon. It is indeed some pretty epic mansplaining, although in fairness I’m sure he would have done the same thing to a male reporter.

…Agreed with Warren Terra that Linda Greenhouse is must-reading on the subject.