Horatio

Horatio
[Photo by Jacquelyn Griffin)

Wednesday, November 12, 2014

A Hermeneutic of Suspicion

There are those who think me unduly cynical about the Roberts Court. In granting review in King v. Burwell, the Supreme Court has teed up a case that might provide me with further grist for my mill. You see, as Abbe Gluck has ably summarized the issue in KIng:
The five words at issue sit in a provision that requires the ACA’s insurance subsidies to be calculated based on premiums for individuals enrolled through an “Exchange established by the State under 1311” (ACA § 1401); the question is whether the IRS properly interpreted the ACA to allow those subsidies also to be available on federally operated exchanges (which now are the majority of exchanges). Section 1311 establishes the state-run exchanges and so, read in a vacuum, Section 1401 appears at first glance to deny the subsidies on federal exchanges. In context, however, the words are at a minimum highly ambiguous, and arguably actually clearly provide for subsidies on the federal exchanges.
Oh, sure, Anglocat, I hear some say. Pick the summary from someone on your side. Who could really believe that non-textual malarkey--and you, a professed textualist, too! Bad cat!

Who indeed could believe such a thing? How about Justices Scalia, Thomas, Alito, and Kennedy in their dissent in NFIB v. Sebelius:
If Congress had thought that States might actually refuse to go along with the expansion of Medicaid, Congress would surely have devised a backup scheme so that the most vulnerable groups in our society, those previously eligible for Medicaid, would not be left out in the cold. But nowhere in the over 900-page Act is such a scheme to be found. By contrast, because Congress thought that some States might decline federal funding for the operation ofa “health benefit exchange,” Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State. See 42 U. S. C. §18041(c)(1).
(Dissent sec. V(E)(2)) (emphasis added))

Naturally, I think we can all count on these four justices to rule in King in a manner consistent with their prior opinion in NFIB v. Sebelius, right? No? Anyone really think they will?

If not, don't blame me for my lack of trust in the Court's conservative activists.

No comments: