by Michael Dorf
In my latest Verdict column I explain the pros and cons of the three main ways in which the SCOTUS could rule for the government in King v. Burwell, even if the Court finds that the relevant statutory language is unclear. As I noted in my last post on the case, one possibility is that the Court could give Chevron deference to the IRS, and a second is that the Court could invoke the clear statement rule of South Dakota v. Dole applicable to conditional spending. The column expands on these and also considers the idea--suggested in amicus briefs and picked up at oral argument--that the principle of constitutional avoidance could be invoked to prevent the necessity of addressing the question of whether it would be unconstitutional for Congress to use the threat of disastrous conditional preemption to coerce states into passing laws that Congress could not simply mandate, given the anti-commandeering doctrine.
To my mind, this third possibility points to a very powerful argument. At the risk of tooting my own horn, it seems to me to be a variant of an argument I laid out in a different context: In an article in the 2007 Columbia Law Review, I raised the possibility of Congress passing a law of dubious constitutionality coupled with a punitive "fallback" provision to be activated in the event that a court found the law unconstitutional. My example there was "a fallback law eliminating funding for parachutes for members of the Air Force in the event that a court struck down the exclusion of homosexual service members from the military" then in force. Although my article acknowledged that fallback laws are generally permissible, I said that a punitive fallback law would not be, because it would be an attempt by Congress to coerce courts into taking measures that Congress has no legitimate power to require them to take.
Likewise here, as I explain in the column in elaborating a point made in one of the excellent amicus briefs in King, although conditional preemption is generally permissible, Congress may not enact a law that punishes the states (rather than failing to reward them or taking over regulating on their behalf) in the event that the states do not do what Congress has no legitimate power to require of them. Thus, while much of the post-oral-argument discussion in the blawgosphere has centered on whether the plaintiffs' reading of 26 § 36B(c)(2)(A)(i) would make it more coercive than, less coercive than, or equally as coercive as the Medicaid expansion conditions invalidated in NFIB v. Sebelius, that framing misses the fact that long before the enactment of the ACA, the Court had said that conditional preemption is generally permissible, while leaving open the question of what the limits on conditional preemption are. That seems like the most natural way to understand the question posed by death spirals as a threat: If that's permissible, then there are no limits on conditional preemption, an outcome that ought to worry the ordinarily federalism-loving enemies of Obamacare.
Meanwhile, my column is also styled in part as a response to opinion pieces by Oklahoma AG Scott Pruitt and Georgetown Law Professor Randy Barnett--each of whom offers arguments against the federalism/avoidance approach in King. Both AG Pruitt and Professor Barnett, I note, say that federalism and avoidance do not give the SCOTUS reason to "rewrite" the ACA, and in that they're undoubtedly correct, but if the relevant provision, in context, is at all unclear, then avoidance is perfectly appropriate. Their arguments against "rewriting" are directed at a straw man.
As an aside, Professor Barnett also objects that "neither party in [King] has ever raised the constitutional [federalism] concern, so we lack adversarial briefing on this issue." But this concern is misplaced. The constitutioanl issues were raised in amicus briefs filed in support of the respondent. In addition to the brief linked above, a brief on behalf of 22 states and the District of Columbia made the point that the ACA did not provide the clear notice required by conditional spending provisions, citing, inter alia, a perceptive column by my Verdict colleague, Professor Vik Amar. Yet another amicus brief, on behalf of my former colleagues Professors Tom Merrill and Gillian Metzger, as well as Professors Abbe Gluck and Nicholas Bagley, made a variety of federalism arguments in the interest of constitutional avoidance. All of these briefs were filed, per the Court rules, three weeks before the plaintiffs' reply brief was due--and that brief in fact did respond to one of their federalism arguments.
I think I nonetheless might agree with Professor Barnett on the general point that, other things being equal, the Court ought not invalidate a law on the basis of a legal theory that has not been fully litigated--but of course, that's not what's on offer here. The federalism arguments presented to the Court are offered for the purpose of construing the statute so as to avoid having to strike it down. Even if the federalism issues had been aired substantially less fully than they have been in this case, it would be completely appropriate for the Court to invoke principles of constitutional avoidance and the other relevant federalism principles in support of the government's reading of the ACA.
Professor Barnett, by contrast, invokes what we might regard as the opposite of constitutional avoidance. He says that if there is a problem of coercion of the states, the Court should nonetheless construe the ACA to disallow subsidies on federally established exchanges, and if death spirals result and the states sue, at that point the Court can respond by invalidating the core of the ACA--the guaranteed coverage and community rating provisions.
At this point in the blog post I was going to explain in measured tones what's wrong with this claim. I might have pointed out that the Supreme Court has made clear that federalism protects states for the benefit of individuals, so that courts should be attuned to issues of federalism regardless of whether the states themselves raise federalism objections. Accordingly, there is little to Professor Barnett's further claim that there's no federalism problem here because Obamacare-hating Republican state executive officials would rather see thousands of citizens in their respective states lose their health insurance than to see the ACA succeed. I might have gone on in that way, but why bother? Instead, I would simply ask readers to re-read the previous paragraph, bearing in mind that Professor Barnett is widely regarded as the leading academic architect of the constitutional campaign against the ACA that nearly succeeded in 2012. And perhaps also to recall the 1968 statement made by a U.S. major to reporter Peter Arnett in explaining why the military had targeted the Vietnamese town of Bến Tre for bombing and shelling, despite the presence of many civilians: "It became necessary to destroy the town to save it."
Postscript for Linguists: I have occasionally been called to task for using "vague" and "ambiguous" as synonyms for each other, and in the foregoing post I use "unclear" to encompass both ideas. I am aware that in some technical sense there is a difference between ambiguity and vagueness: an "ambiguous" term points to one of two or more possible meanings, whereas a vague term is merely unclear as to its extension. I understand the distinction and that it can be important in some contexts, but I don't think anything turns on it here. If I had to come down on one side or the other, I guess I'd say that we have here a case of (possible) ambiguity rather than vagueness: either "established by the state" means "established by the state and not the federal government" or it means "established by the state or by the federal government standing in the shoes of the state."