The Growing Scandal of King v. Burwell

FILE - In this Feb. 12, 2008, file photo, Chief Justice John G. Roberts, Jr., is seen in Providence, R.I.  Turned away at the Supreme Court, congressional Republicans sketch a filibuster-proof strategy to repeal the nation's health care law in 2013.  But it hinges on two uncertainties ― Mitt Romney capturing the White House and the party seizing even narrow control of the Senate (AP Photo/Stephan Saviola, File)

Sometimes the lede buries itseslf; the point will hide in plain sight. It is an easy thing to do, hiding in plain sight, when nobody is looking for you:

The Supreme Court has developed elaborate tests to determine if plaintiffs have standing to sue. But their essence, Justice Antonin Scalia once observed, is a four-word question: “What’s it to you?”

To get into court, it is not enough to be unhappy about something. Only people with a direct stake in a dispute have standing to sue.

Which brings us to the four plaintiffs in the latest threat to President Obama’s health care law, to be heard next week. Recent news reports have raised the question of whether any of them has a dog in the fight.

But it is not clear that the Supreme Court will address that question, which could determine the outcome of the case. The court’s recent decisions have been inconsistent and provide few clues about what it might do. The court is sometimes accused of being opportunistic in using the standing doctrine to avoid legal questions it wants to duck, but ignoring the issue when it is eager to weigh in.


Two sentences; did you miss them?

No, really, this is important: “But it is not clear that the Supreme Court will address that question, which could determine the outcome of the case. The court’s recent decisions have been inconsistent and provide few clues about what it might do.”

One of the hallmarks of the Roberts Court is its disrespect for standing case law and precedent. The Chief Justice is an example of why the longstanding conservative complaint about liberal judicial activism is a swindle. John Roberts seems to apply more of an “if it feels good, do it” attitude to the judiciary, but at the same time he’s conscious of appearances, which is why conservative majorities on the Court will occasionally do that weird thing where they overturn case law but then disclaim that they’re not overturning anything, such as we’ve seen in Ricci (Civil Rights Act) and Texas (Voting Rights Act). And there is also the conservative majority’s clear tendency to throw cases for politics by carving out one-time exceptions to the law, such as we saw in Safford, in which a school was forgiven a sex offense because ignorance is bliss and, well, why would a young girl be upset by adults forcing her to strip down so they can leer and prod at her body, and Ricci, in which the New Haven Civil Service Board followed the law but was held in fault for doing so.

One of the reasons this Court is so hard to predict is, in fact, its inconsistency. And the reason it is hard to pin down that inconsistency is because it is so inconsistent. To the one, it is not a purely institutionalist streak. To the other, it is not purely traditionalist. Rather, it seems Chief Justice Roberts is happy to keep pushing the image of calling balls and strikes just as long as nobody points out that the strike zone keeps changing.

The Constitution is John Roberts’ playground, nothing more. Inconsistency will be the hallmark of his chiefdom.

† † †

Were it not for the notorious unreliability of the Roberts Court, the question of King v. Burwell would be exceptionally dubious. While the question of standing, whether any of the King petitioners actually have grounds to complain, seems to be falling apart as the days pass, there really is no present signal that a majority on the Court will care. Then again, this is the same Court that agreed to hear Perry v. Brown and then essesntially punted in its decision, hoping to avoid the question that will return with De Boer. One need not wonder that they punted, per se, though the question of why they would take the case with that foreseeable outcome was something to scratch the head about.

It might seem easy enough to suggest they’re taking this case to test the waters, to see if any arguments will actually have merit, with standing as a safety valve, but that really is not the way the Court functions or is supposed to. Then again, this is the Roberts Court, so even that manner of absurdity is entirely possible at present.

Beyond the standing question is the underlying argument itself; former White House Director of Legislatie Affairs Phil Schiliro explains:

The lynchpin of their argument is a mistaken interpretation of a single phrase — “an Exchange established by the State” — in the definition of “Premium Assistance Amount” in one sentence of a long and complicated law. They say these few words can refer only to the exchanges run by the states, not the 34 exchanges operated by the federal government for states that elected not to run their own.

But the explanation for these words is actually not complicated. The concept of 50 state-specific exchanges is essential to the law. Regardless of whether a state operates its own exchange or the federal government does it for the state, each state will have its own distinct roster of insurance companies and rate options. The identifier “an Exchange established by the State” is a clarifying reference to a particular state-specific exchange, as opposed to the exchanges operating in other states (this is what’s referred to as a “term of art”). When the IRS determines the appropriate tax credit, distinguishing between state-specific exchanges matters: Texans are supposed to get tax credits based on the cost of health insurance in the Texas exchange, not New York’s or North Dakota’s.

In the broader context, it’s even clearer: one section of the law directs the IRS to take into account the rates charged in “an Exchange established by the State” in setting premium assistance, while another provides that federally run exchanges are “such Exchange within the State,” and are to be treated as exchanges established by the states. It’s just an attempt at statutory clarity. And it amounts to nothing more than that, no matter how creatively the law’s opponents try to interpret those words.

Of course, the lawyers challenging the Affordable Care Act (ACA) haven’t only invented a new interpretation, but they have concocted an entire theory that Congress and the President intended this result. This is preposterous and defies the statutory language, the context and design of the law, and the legislative history.

Admittedly, this is an innovative twist; conservatives usually argue that government doesn’t work and then set about trying to govern in a way that cannot work. On this occasion, they are simply using the argument that government doesn’t work as a presupposition―can’t you see that both Congress and President Obama specifically crafted this law with the intention that it should fail? Yes, really, you can believe that if you want, but it is a requirement of the conservative argument.

The ACA was built on three interlocking principles: prohibiting insurance companies from discriminating against individuals with pre-existing conditions, requiring everyone to have insurance to prevent adverse selection from undermining the market, and providing tax credits to help everyone afford coverage. Although the ACA obviously has attracted implacable opponents, it’s silly even for them to argue that a single, unremarkable phrase could be interpreted in a way that upends the law’s fundamental architecture.

And “silly” is the way of the walk, as Greg Sargent summarized not quite a week ago:

The most important read of the morning is Glenn Kessler’s deep dive into the previous statements of leading GOP lawmakers about the structure and purpose of the Affordable Care act — statements that strongly suggest they only recently came around to the reading of the ACA that is driving the King v. Burwell legal challenge that could do severe damage to the law.

Kessler reports that GOP Senators John Cornyn, John Barrasso, and Orrin Hatch, along with Rep. Paul Ryan, are all previously on record making statements that appear grounded in the assumption that subsidies would be available to people who got health care on the federal exchanges, in addition to state ones. The King lawsuit, of course, alleges that the ACA does not authorize subsidies to all those people, and now, Cornyn, Hatch, and Ryan have signed a brief siding with the challengers. Meanwhile, Barrasso is openly rooting for the Supreme Court to “bring down” the law.

Some of these statements have been previously aired. What’s new here is that these Senators and their spokespeople have now attempted to explain their shift in views. Most of their explanations, Kessler concludes, are pretty weak, and amount to an “unacknowledged flip-flop.”

The standing issue has been interesting from the outset; Congress had to shop for litigants after the idea of House v. Burwell fell apart, and since then Republicans have reminded, they simply aren’t good comparison shoppers; if their case was remotely realistic, they should be able to find real plaintiffs to make a real complaint.

Remember, though, that beyond the question of standing is a bizarre legal argument suggesting that government intentionally fails, that President Obama and Congress passed a law specifically because it was untenable and dysfunctional.

And then remember how many Republican advocates of this stupid argument actually didn’t believe that until it became the only thing they could find to complain about.

One would think this case open and shut.

The only wildcard is the Supreme Court, and whether the Chief Justice personally wants the ACA destroyed. Because, on the Roberts Court, the strike zone is whatever the Chief Justice wants. After all, he never promised it would be the same for everyone, which is why you can break the law by following it, and why ignorance is bliss for child molesters.

And that’s the big wildcard heading into King v. Burwell.

Interesting, indeed. Proverbially so.


Image note: Chief Justice John G. Roberts, Jr., in Providence, RI, 12 February 2008. (Credit: AP/Stephan Saviola/File)

Liptak, Adam. “Health Law Challenge Tests Supreme Court’s Firmness on Right to Sue”. The New York Times. 23 February 2015.

Schiliro, Phil. “The Straightforward Explanation for ‘Established by the State’ in the Affordable Care Act”. The Huffington Post. 23 February 2015.

Sargent, Greg. “Morning Plum: Republicans struggle to explain their ‘flip-flop’ on anti-Obamacare lawsuit”. The Washington Post. 18 February 2015.

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