SCOTUS “institutional legitimacy” not at stake in King v. Burwell

SCOTUS “institutional legitimacy” not at stake in King v. Burwell

The upcoming Supreme Court case of King v. Burwell holds much in the balance, including the very financial sustainability of President Obama’s signature law, the Patient Protection and Affordable Care Act (PPACA). If the Supreme Court rules for the plaintiffs, the ability for the law to support itself would almost certainly collapse.

At issue in King is the legality of an IRS rule allowing exchanges operated by the federal government to issue tax subsidies to qualified individuals purchasing health insurance through the exchange.

This is an incredibly complex issue, and many courts, scholars, and commentators have spent thousands upon thousands (upon thousands) of pages of argument attempting to arrive at the proper conclusion. Ultimately, we must wait until the Supreme Court decides this case at the end of the term to learn the definitive conclusion.

The complexity of the law notwithstanding, many commentators remain convinced that any ruling against the government would be one for politics over the law, leading to familiar questions of the “institutional legitimacy” of the Supreme Court should they rule against the government. This is nothing new, especially when it comes to the issue of PPACA. Indeed, in the wake of the 2012 PPACA challenge, a litany of law professors and legal scholars shared in the assessment that striking down PPACA would result in substantial costs “for the Court as institution and for its credibility carrying out its vital national role going forward.”

Despite the pattern of many scholars to tie the legitimacy of the Court to ruling in favor of PPACA proponents, I honestly believe the “sky is falling” rhetoric regarding King v. Burwell to be severely overblown.

The primary contention of those who believe the institutional legitimacy of the Court is at stake in this case is that holding against the government would be a departure from a vital administrative law axiom known as the Chevron deference standard.

As Michael Cannon and Professor Jonathan Adler point out in their excellent article, the Chevron deference test is a two-step inquiry:

First, the reviewing court considers the statutory text to determine “whether Congress has directly spoken to the precise question at issue.” If so, the statute controls, “for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” If the reviewing court concludes that the statute is “silent or ambiguous,” however, and determines the interpretive authority has been delegated to the agency, the court must defer to the agency’s statutory interpretation, so long as it ‘is based on a permissible construction of the statute.’”

In other words, step-two requires the agency interpretation of ambiguous statute prevail unless it is “arbitrary, capricious, or manifestly contrary to the statute.”

As a result, the government’s contention largely rests on the premise that ambiguity exists in the statutory language of Obamacare, and thus, the IRS should be accorded due deference to craft rules consistent with their interpretation (one that obviously would entail the continued existence of the federal exchange tax subsidies).

The entire issue of King can be boiled down to the IRS Rule’s inconsistency with the language of three sections of the PPACA: §1311, §1321 and §1401.

Section 1311 creates the authority for an “exchange established by the State.” Likewise, Section 1321 creates the authority for the federal government to create “such exchange” in the event a state refuses to establish a Section 1311 exchange (which, much to the surprise of the law’s drafters, has occurred in more than half the states).

Finally, Section 1401 allows for tax credits to be issued for “Exchanges established by the State under 1311.” And therein lies the problem for the government’s position. Section 1321 exchanges are not “established by the State,” and they certainly are not “established by the State under 1311.” No, Section 1321 exchanges are established by the federal government under Section 1321.

Lawyers may quibble all they want about whether Section 1321 exchanges, for all intents and purposes, are 1311 exchanges. For all their legal gymnastics, however, Section 1321 exchanges simply can never be “Exchanges established by the State.” Indeed, follow the absurdity of the government’s reading of the statute here:

A federally created Section 1321 Exchange = an Exchange established by the State under 1311.

Such a reading is simply too far a departure from the plain reading of the statute as to give it the weight necessary to create the statutory ambiguity required under Chevron.

With no need to grant deference under Chevron, separation of powers issues — at least with respect to Court — do not come into play in this case. As a result, even if the Court rules for the plaintiffs, the “institutional legitimacy” of the Court ought to (once more) be safe for another day.

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