Sunday, March 8, 2015

How I Think King v. Burwell Will Likely Be Decided


Now that oral arguments are concluded and the nine justices of the Supreme Court have met to discuss their sentiments and, in all likelihood, announce how they will vote, I thought I'd sum up what I think the whole case will come down to.

The challengers position has been from the start that the subsidies in states that did not set up their own exchanges should not be allowed. The words "established by the state" are unambiguous and, if the statute is to be treated in a literal way, the Court must find for them.

The government's position, not surprisingly, is that it was never the intention of Congress to deny subsidies to people in states that did not set up their own exchanges. Indeed, elsewhere in the statute, it clearly says that in cases where states elected not to set up their own exchanges, the Department of Health and Human Services would set up the exchanges for them. Therefore the words "established by the state" are ambiguous and the Court should defer to legislative intent.

There is precedent on the side of the government for this claim.  The Court has long upheld the doctrine of constitutional avoidance which, in a nutshell, says that if there is more than one way of interpreting a standing case, the Court should choose an interpretation that doesn't raise a constitutional problem.

The doctrine stems from another canon called judicial restraint, long held by by conservatives as a litmus test for justices. Ironic, isn't it, that a doctrine lauded by conservatives could well prove to be the life-line of a law despised by those very same conservatives since its inception.

And then there is another issue first raised by Justice Sotomayor and later by Justice Kennedy that centers around the Tenth Amendment and the role of federalism. To paraphrase what both Sotomayor and Kennedy said, if the Court were to find for the challengers and void the subsidies it would be in essence forcing states into setting up their own exchanges to avoid having their citizens pay exorbitant rate hikes. It would mean that Congress deliberately intended to coerce states into compliance with a federal law, a clear violation of the Tenth Amendment.

Like the issue of constitutional avoidance and judicial restraint, the issue of federalism in this case presents its own irony for liberals because it's based on the old states' rights argument, which they historically have abhorred. Wouldn't it be the ultimate kick in the pants if liberals ended up getting the decision they wanted but in a manner they detest?

And yet that's exactly what I think will happen here. I think both Kennedy and Chief Justice Roberts will uphold the subsidies, not based on the language in the statute, which, depending on your view of the law, is either ambiguous or unambiguous, but on the grounds that ruling against the Administration would present a constitutional quagmire that the Court has historically looked to avoid. Voiding the subsidies in the 34 states that elected not to set up their own exchanges would force them into compliance in order to prevent a death spiral of their insurance markets. And that is a clear violation of the Tenth Amendment.

So there you have it: my prediction of how this case will be decided. A 6-3 win for the Administration. Now before you go off breaking out the bubbly, I should warn you that three years ago I predicted that the Court would void the individual mandate. Were it not for a rather unusual and unique reading of tax law by Roberts, Obamacare would've died right then and there. So I'm hardly a guru.

One thing I can predict with certainty: even if the Administration prevails in June, we haven't seen the last of the opposition's attempts to destroy this law. They will never cease. And that you can take to the bank.

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