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Yearly Archives: 2014


Obamacare 2.0 litigation: time to panic?

In September, I presented the D.C. Circuit’s decision to rehear the most recent challenge to the Affordable Care Act (ACA) as an example of how hyperventilating over lower court rulings often proves unnecessary. On Friday, however, the Supreme Court opted not to wait for the D.C. Circuit en banc hearing, instead choosing to grant review of the Fourth Circuit’s ruling upholding the ACA’s subsidies to insurance purchasers in states whose exchanges are run by the federal government. Is it time for ACA supporters to break out the paper bags?

Reasons for panic:

* The fact that the Supreme Court took the case at all, given the absence of a lower-court split on the issue. With the D.C. Circuit’s rehearing scheduled for December, the justices could have waited to see if the issue resolved itself. Instead, they decided to review the Fourth Circuit’s ruling now, and given the fact that the Court is more likely to grant review to reverse a lower court’s decision than to affirm it, ACA supporters have reason for concern. It is true that only four justices’ votes are needed to review a case, and as such, a vote to review is not necessarily a vote on the merits of the case. But if the four dissenters in the 2012 ACA case were uncertain that they had a fifth vote, why rush to take the Fourth Circuit case?

* The persistence of a dubious legal claim. The short version is that the reference in the ACA to “an Exchange established by the State” precludes the provision of federal subsidies (the part making the Act’s care affordable) to purchasers in states that chose not to create their own health exchanges, instead relying on the federal government to do it. In this rendition, the reference to “the State” reflects not an isolated instance of sloppy drafting at odds with the statute’s other references to the exchanges. Instead, it reflects a deliberate policy choice to compel states to set up their own exchanges by denying subsidies to residents of states declining to do so.

The fact that this alleged purpose was unknown to the people who actually drafted the ACA, voted on it, and contemporaneously commented on the debate surrounding it, or that this interpretation would eviscerate the statute’s overall purpose of expanding access to health care, matters not at all. If several million people have to lose health coverage–and some of them will die as a direct result–well, that’s the fault of the legislators who drafted the statute this way, not of judges looking for an excuse to wipe out an opposing party’s president’s signature legislative accomplishment. It is tempting to laugh off a legal claim of the sort being offered here, but the Commerce Clause argument raised in the Obamacare 1.0 litigation wasn’t taken seriously either until it came up one vote shy of voiding the ACA entirely.

Reasons not to panic:

* The ACA survived the first round of litigation, despite concerns that the Court might use a restrictive reading of the Commerce Clause to void the act. Chief Justice Roberts had a kill shot lined up in 2012 and chose not to pull the trigger, at a time when striking down the law would have had minimal practical (though significant electoral) consequences. Why would he be more likely to use a less solidly grounded legal claim to do in 2015 what he was unwilling to do in 2012?

* The status quo makes ACA repeal less politically palatable. In 2012, the status quo was the prospect of affordable health insurance for millions of people. Today, the status quo is the reality of affordable health insurance for millions of people. A ruling against the government’s position would strip the subsidies that make the mandatory health insurance affordable, and then subject them to penalties when they can no longer afford insurance. Will the Court inflict tangible misery on millions of people in the service of a ruling that would have minimal precedential value and would serve no other purpose than kneecapping the president’s legacy? A politically tone-deaf Court that chose to rule as it saw fit, and let the political chips fall where they may, might be willing to undertake such action. But

* Chief Justice Roberts has shown enough of an instinct for strategic behavior that he might hesitate to unleash the political chaos that would accompany a ruling against the subsidies.The 2012 ruling on the Affordable Care Act demonstrated these instincts vividly. The majority ruled in ways that undercut the ACA’s effectiveness (making the Medicaid expansion optional) and that lay the groundwork for future restrictions on Congress’ authority to legislate under the Commerce Clause. At the same time, though, Roberts provided the fifth vote to leave the act standing, despite his hints at misgivings about the act’s policy soundness.

In the pending litigation, however, he won’t have any compromise position. Either the statute’s overarching purpose and context, coupled with the Court’s longstanding position of judicial deference to agency interpretations, will prevail, or a literalist reading of one clause taken in isolation will. The latter will compel state officials in 34 states to decide whether to strip their citizens of subsidies. It is true that Republican governors and legislatures had no problem denying the Medicaid expansion to their neediest citizens, despite the fact that funding for the first three years would have been supplied entirely by the federal government. But stripping ACA subsidies would harm middle-class households, which have much more political clout than the least affluent. It would also throw the private health insurance market into disarray. Maybe conservatives on the Court don’t care about any of these things. But the ACA will survive as long as one conservative justice does.

What happens at oral argument will tell us more about what to make of the Court’s action. But the fact that we’re having this conversation at all says something profound about the Roberts Court.


Harry Reid’s to-do list now should have just one item

The shellacking Democrats took on Tuesday should have the effect of sharpening Senate Majority Leader Harry Reid’s focus as the lame-duck session of Congress approaches. He must know that no legislation of consequence will be allowed to emerge from his chamber, given the looming transfer of partisan control. He also must know that, protestations of comity to the contrary, no judicial nominee to the left of Anthony Kennedy will get a vote on the Senate floor when Mitch McConnell has control. (Whenever a Kennedy clone would fare better is unclear.) Indeed, many potential nominees will never get hearings in the Senate Judiciary Committee once Chuck Grassley takes power.

Unless Reid is ready to become the legislative equivalent of a teacher who spends the last week of school showing videos to his students, he has one thing he can do to make productive use of his remaining time as majority leader: process judicial nominations. The shortage of remaining time precludes consideration of new nominees, and probably of the 18 nominees who have not cleared the Judiciary Committee. But there are 16 nominees who have already been reported out of committee and need only a floor vote. Republicans will look to run out the clock, and even without the filibuster in place, there will be ample delaying techniques at their disposal. But even in the face of maximum delay, there will be time to confirm at least some nominees. And even incremental gains in the federal judiciary are crucial to a president who will have limited ability to do anything other than defend his accomplishments from erosion if not outright obliteration.

Someone still uses Courier?

I understand that state and local governments often face budgetary constraints that prevent them from adopting the latest technology. Nonetheless, I was astonished to see that the Massachusetts Supreme Judicial Court insists on giving its published opinions a strong retro flavor:

The court’s opinions all come down in Courier, the old-fashioned typeface designed to mimic electric typewriters. Courts are known for being tradition-bound, but today the SJC is one of only five state high courts that still issue opinions in Courier. And Massachusetts is one of only three states—along with Alabama and New Jersey—that essentially force appeals court attorneys to file their briefs in the font.

As a result, Massachusetts court proceedings have an almost uniquely retro look. The US Supreme Court publishes its opinions in neat, literary Century type. The State Department defected from Courier a decade ago in favor of Times New Roman. Even middle-school students can print their papers in high-toned Bodoni or Garamond.

The advantage to Courier is that, as a monospaced font (each letter has the same width and spacing), it frustrates efforts by attorneys to stretch page maximums by playing with fonts. Indeed, Massachusetts has explicitly defended its policy as a way to enforce the state’s 50-page limit for appellate briefs. (The state’s trial courts have much more lenient rules for brief submission.)
Now I can understand why the state might want to prevent attorneys from gaming the system. If I don’t include font and spacing requirements in the instructions for my writing assignments, I can guarantee that a critical mass of students will seize the tacit invitation to use fonts creatively. (Unlike the Massachusetts attorneys, though, they will be stretching prose to fill a page minimum.) But why cling to a policy made obsolete by technological advances, including the not-all-that-advanced advance of word processors with a word count option?
I suppose that when most appellate briefs filed in your state are still the dead-tree variety, word processing might seem by itself to be a significant advance. But presumably, the documents printed in Courier are not being generated on Smith-Corona manual typewriters. Until the state switches to all-electronic filing, why not continue to accept paper and require filers to include a flash drive, from which court personnel could open the relevant file and do a word count? Ultimately, without pressure from within the system (and there seems to be very little), there will probably be little impetus to change. Moral: never underestimate the power of inertia.

Grooms still waiting at the altar? Not in at least 5 states, thanks to the Supreme Court

After months of buildup, the Supreme Court today surprised many observers by declining to review all seven same-sex marriage cases currently before it. As a result, gay and lesbian couples in Indiana, Oklahoma, Utah, Virginia, and Vermont will be able to marry immediately. In addition, couples in six other states located in the Second, Fourth, Seventh, and Tenth Circuits (Colorado, Kansas, North Carolina, South Carolina, West Virginia, and Wyoming) will now benefit from the new legal vulnerability of their respective states’ bans.

Why did the justices choose to punt the issue for now? One possible explanation lies in the absence of dissension in the Courts of Appeals that have considered the issue. The Supreme Court has been more likely to review cases where a circuit split exists, because (1) consideration by multiple circuits serves as a proxy for legal significance, and (2) resolving the conflict promotes the goal of uniformity in interpretation of federal law. Moreover, the Court tends to grant review when it wants to reverse the lower court’s holding, as opposed to when it agrees with the lower court. Given the presence of pending appellate litigation in the Fifth (Texas) and Sixth (Tennessee) Circuits, the Court might have decided that it could wait for the possible emergence of a ruling upholding a state ban.

This explanation, however, proves unsatisfying. Intercircuit conflict does correlate with a greater likelihood of review, but it is neither a necessary nor a sufficient condition for review. The Court has taken cases where the legal issue was deemed so important that it merited review despite the absence of a circuit split, and not all of these cases involved singular historical events. Indeed, when the Court has desired to expand the scope of litigation, it has asked the parties for rebriefing and reargument, as it did in the Citizens United litigation. So when the justices really want to address an issue, they find a way, intercircuit agreement notwithstanding. It is hard to believe that six justices (under the Court’s rules, only four votes are needed to grant review) did not find the substantive issue sufficiently important to merit review.

A second explanation involves strategic decision making surrounding the consummate swing justice on the Roberts Court, Anthony Kennedy. As noted earlier, it takes only four votes to get a case accepted, but a forward-thinking justice would base his decision at least in part on whether he expected his side to prevail on the merits. Yes, the Court is more likely to hear cases to reverse the lower court than to affirm it, but the justices favoring same-sex marriage could have found reasons to justify a grant to affirm–removing uncertainty in states where bans remain unchallenged, for one. Perhaps neither side felt confident that it had Justice Kennedy’s vote. On one hand, Justice Kennedy has authored several landmark rulings in favor of gay rights, and one could understand why his conservative brethren might seek to keep another same-sex marriage case away from him. At the same time, however, he has been a stalwart participant in the Rehnquist and Roberts Courts’ federalism revolution, and a ruling on same-sex marriage would force a conflict between his rhetoric about government policies that deny LGBT individuals basic human dignity, and his rhetoric about the importance of state sovereignty.

Perhaps Justice Kennedy knows how he would square these conflicting considerations, but more to the point, perhaps his colleagues on the Court don’t know. As such, each bloc might prefer to take the risk-averse course and deny review. The conservative bloc avoids a ruling that legalizes same-sex marriage nationwide, while the liberal bloc avoids a ruling that leaves the issue to the states.

A third explanation contends that the Supreme Court felt no need to take a case to make a grand statement on marriage equality because it had already issued its grand statement last year in the Windsor case. By this reckoning, the logic underpinning the Court’s decision to strike down part of the Defense of Marriage Act could not be confined to the question of whether the federal government could refuse to confer spousal benefits upon someone recognized as married under her home state’s law. Rather, as Justice Antonin Scalia predicted in his dissenting opinion, the Windsor holding compelled the rejection of state bans on same-sex marriage. This was the message received by the overwhelming majority of lower court judges–many of whom cited Scalia’s Windsor dissent, some with barely concealed glee–who ruled on challenges to same-sex marriage bans. As Amy Davidson noted at the New Yorker, had any of these lower court rulings overstepped in their reading of Windsor, the Supreme Court had the opportunity here to set things straight (my bad not-quite-intended pun). Its decision not to decide might not produce a landmark ruling destined for the next generation of constitutional law textbooks, but it might have a landmark-sized impact nonetheless.

All of these explanations could be mooted imminently by a Fifth or Sixth Circuit ruling upholding a state ban. At that point, the Court might decide it has little choice but to intervene. But it is difficult to imagine the Court’s retreating from what it announced today, even if the opportunity to retreat were to arise. When it comes to marriage equality, there’s no putting the toothpaste back into the tube. Opponents of today’s ruling know as much, which is why their anguish is especially pronounced. Will supporters of marriage equality eventually get their triumphant Supreme Court ruling explicitly proclaiming same-sex marriage bans unconstitutional? Perhaps. What has become more probable is that the success of the effort will not hinge on their getting that ruling.

Some slightly belated Constitution Day reflections

Yesterday was Constitution Day, on which Americans celebrate the anniversary of the signing of the U.S. Constitution, and institutions of higher learning throughout the land scramble for Constitution-themed programming, lest they jeopardize their federal funding. As for how we celebrate, well, let’s just say it’s a work in progress. There are no fireworks, or bacchanalia of feasting and football, or parades to commemorate veterans or to remember the accomplishments of organized labor. We don’t celebrate our foundational political document in the way that Jews celebrate theirs, with song, drink, and dancing with Torah scrolls. Perhaps the most appropriate celebration, barring adoption of a secular analogue to the Simchat Torah festivities, simply involves reflection on the Constitution. In that spirit, I offer some reflection:

  • The Constitution reflected the most sophisticated political philosophy of its era, as well as lessons learned from history, both ancient and very recent. So why is so much of the celebration devoted to a mindless veneration that refuses to acknowledge that we have an advantage over James Madison and company, namely 200+ years of practical experience with, and scholarship about, political institutions?
  • Make no mistake about it: when it comes to thinking about the Constitution, the American public is decidedly prone to mindless veneration. Just as Americans proclaim that the U.S. health care system is the best in the world, despite the substantial body of evidence to the contrary, we resist considering the prospect that other institutional arrangements might produce better governance. When our governance does not address the pressing issues of the day, or addresses them in a dysfunctional manner, we tend to attribute blame to individual political actors or parties, or to the political class as a whole. The implicit assumption is that it’s easier to make flawed human beings less flawed, or to improve our ability to identify and empower less flawed human beings, than it is to rethink the environment in which these flawed human beings operate. But the multitude of failed attempts throughout human history to perfect human behavior, coupled with what students of government understand about the significance of institutional design, should lead us to question that assumption.
  • Constitution Day’s focus on the text of the document–a variation on the Protestant principle of sola scriptura–underplays the importance of everything else that has come to shape constitutional understandings since 1787. These understandings reflect centuries’ worth of judicial interpretation, historical practices and traditions, and consensually accepted norms. States, for example, are obliged to respect virtually all of the protections enumerated in the Bill of Rights, but not because the Constitution’s text clearly commands that obligation. Rather, the incorporation of the Bill of Rights has resulted from an interpretation of the Fourteenth Amendment’s Due Process Clause that we (OK, Justice Thomas, not you) have accepted for some time. Try to envision states no longer bound to abide by the Bill of Rights, and you’ll see why the gloss placed on the Constitution should not be overlooked in favor of a focus on the original text alone.
  • Finally, if you’re not in the mood to celebrate the Constitution, I’d recommend two thought-provoking books by Sanford Levinson: Our Undemocratic Constitution (2006) and Framed (2013).

Now go out and take advantage of those post-Constitution Day sales!

Another lesson in why not to hyperventilate over lower court rulings

On Thursday, the D.C. Circuit Court of Appeals agreed to rehear the latest challenge to the Affordable Care Act (ACA) en banc (with participation of all of the circuit’s judges, as opposed to the standard three-judge panel). In so doing, it illustrated why breaking out your victory celebration midway through the second quarter of a game is ill-advised.

Opponents of the Affordable Care Act thought they had much to celebrate earlier this summer when a D.C. Circuit Court of Appeals panel held that the Act’s subsidies for health insurance were available only to purchasers who obtained their insurance through a state-run exchange. Under this reading, which relied on a curiously rigid application of textualism that textualists themselves normally reject, those who bought from the federal exchange because their home states declined to create their own exchanges would be ineligible to receive the subsidy. If the ruling were to hold, it would fatally undermine Obamacare by stripping out the subsidies that make insurance affordable for millions of people who did not previously have insurance, but are now required to do so by the Act’s individual mandate. Lamentations and rending of garments, under those circumstances, would be an appropriate response for backers of Obamacare, not to mention the several million people who would lose their affordable health insurance.

As it turns out, though, a Fourth Circuit Court of Appeals panel rejected the argument that prevailed in the D.C Circuit, thereby generating a split among the circuits that increases the likelihood that the Supreme Court will grant review. The ACA opponents from the Fourth Circuit quickly petitioned the Supreme Court for review, in the hopes that the Court wouldn’t pass on a second opportunity to deliver a fatal blow to Obamacare. But the plan to fast-track the case to the Supreme Court was threatened by the Obama administration’s petition to the D.C. Circuit to rehear the case en banc, where a sizable majority of Democratic appointees (unlike the Republican majority on the panel that heard the case earlier) would be likely to reverse the panel’s holding. A ruling by the whole circuit in favor of the administration’s position would eliminate the circuit split and improve the odds that the Supreme Court would pass on the issue altogether.

To prevent this scenario, ACA opponents had to convince the D.C. Circuit not to agree to rehear the case, thereby preserving the circuit split. While the petition requesting review of the Fourth Circuit’s holding argued that Supreme Court review is crucial to resolve uncertainty about the continuing legality of subsidies, the argument against rehearing in the D.C. Circuit claimed that en banc review is unnecessary because the issue of statutory interpretation addressed by the panel review does not rise to the level of “exceptional importance” necessary to justify en banc review. Alternatively, had the Supreme Court granted review of the Fourth Circuit decision before a ruling on the D.C. Circuit rehearing petition could be issued, the en banc petition would have been left for naught. Thursday’s announcement  precluded that possibility as well.

But ACA supporters might be advised to avoid excessively celebrating their recent good news. The absence of a circuit split decreases the probability of Supreme Court review, but not to zero. The Court could decide that the issue is sufficiently important to merit review even if all circuits that have spoken so far agree on the underlying legal issue. Should the Court go this route, we will be left with several cliffhangers. What will Justice Scalia’s brand of textualism lead him to do when confronted with a law he despises? Will Justice Kennedy, who does not typically share Scalia’s commitment to this interpretive approach, go along for the ride? Will Chief Justice Roberts continue to act strategically, as he had in the first round of Affordable Care Act litigation, in the face of the prospect of millions of people being stripped of affordable health insurance? The announcement of the en banc hearing reduces, but does not eliminate, the possibility that folks on both sides will face some anxiety until we eventually receive answers to these questions. As such, ACA supporters, as well as opponents, might want to wait before dumping the Gatorade buckets on the legal teams fighting for their respective positions.

“The card says Moops”

My favorite example of mindlessly formalistic, ruthlessly result-oriented textual interpretation comes from George Costanza. In the “Bubble Boy” episode of “Seinfeld”‘s fourth season, George denied his opponent a win in Trivial Pursuit based on an obvious typo. What frustrated George’s opponent so much was the transparent bad faith displayed by George, who knew perfectly well that Spain was not invaded in the 8th century by the Moops. Today, a DC Circuit Court of Appeals panel struck down crucial Affordable Care Act (ACA) health insurance subsidies, based on a literalist reading of a statutory provision that renders the rest of the statute absurd and defies the understanding of every participant in the legislative debate about the availability of tax credits for people who bought their insurance through the federal exchange because their states refused to set up their own exchanges.  My advice to the judges in the majority in Halbig v. Burwell: when your reasoning closely resembles George Costanza’s, you might need to rethink your position (“do the opposite”?).