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Monthly Archives: November 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.