Over at Value Added: Nick Bunker: Weekend Reading
Over at Equitable Growth: Mindless and Mindful Austerity: Focus

Live from the Roasterie: Scott Lemieux on the Structure of the King Lawyers' Argument


We can no longer say "the structure of the King plaintiffs argument..." for it is not clear that there are any King vs. Burwell plaintiffs, or that if there are any King plaintiffs they agree with any of the arguments that the lawyers from Jones, Day are making on their behalf. This is a huge black eye for Jones, Day, and is certainly making everyone reconsider what they thought they knew about the quality of their work. But I digress...

Scott Lemieux warms up by observing:

Scott Lemieux: Cato Comedy Classics: "So what’s the funniest thing about this?

  • The fact that former Cato interns wanted no part of the troofer lawsuit;
  • The title implying that Politico hacked into Cannon’s email, rather than the massively more likely possibility that the email was provided by one of the recipients, or *Cannon complaining about the Cato institute being described as ‘right-leaning.’

Before taking the stage for the main event:

Scott Lemieux: The Structure of the King Lawyers' Argument: "There are two ways that the argument can proceed...

...in its attempt to establish that the Affordable Care Act does not authorize health insurance subsidies on federally established state exchanges. The first is to say that no matter what lawmakers intended to accomplish, they mangled the letter of the law to say that the subsidies will not flow to such exchanges. Whoops. The other argument, fully embraced by the law's opponents at the Supreme Court, is that legislators intended to deny subsidies to the states--even though that would go against everything they set out to accomplish. These are both terrible arguments: one would deny millions of people health insurance over the equivalent of a typo, while the other flies in the face of common sense and the historical record. But they permit opponents of the ACA to switch from one to the other as a means of evading devastating objections to any individual argument.

A classic... is Ramesh Ponnuru... [whose] column in Bloomberg is a useful distillation of the three stages of Affordable Care Act trutherism. Ponnuru starts out by suggesting that the letter of the law is clear.... But you can arrive at this conclusion only by using terrible, unworkable methods of statutory construction.... Major legal scholars, including Ronald Reagan's solicitor general and one of the country's foremost experts in statutory construction, explains this in clear detail.... The ACA is an excellent illustration of why phrases in statutes should be read in context. Doing so produces a coherent reading of the statute's purpose, whereas the reading of the ACA's opponents... by Jonathan Adler and Michael Cannon produces numerous anomalies and puts the statute at war with itself.

There's a reason why Adler and Cannon haven't been content to rest on the typo argument. It sounds superficially plausible in a seminar room, but in the broader world, people are going to wonder why literally none of the relevant federal or state officials read the statute in accordance with its allegedly clear and unambiguous meaning.... As a sort of way station... Ponnuru proceeds to an argument we can label, 'Looks like those clowns in Congress did it again. What a bunch of clowns.'... In this case, the idea that we can't reasonably infer what Congress was trying to do is absurd. The amicus brief written by Nicholas Bagley, Thomas Merrill, Gillian Metzger, and Abbe Gluck is particularly strong on this point. Federal backstops are... a bog-standard part of cooperative federalism.... Congress did not intend for the federal backstop to fail, and it was universally understood that the insurance exchanges could not work without tax credits and the individual mandate....

As such, it makes sense that the ACA's opponents would develop an alternate history.... The Supreme Court is much less likely to strip insurance from millions of people based on what the architects of the suit initially identified as a 'glitch,' than if it convinces itself that it's upholding the will of Congress. Ponnuru doesn't go quite so far as to say that he's '100 percent certain' about what the ACA's drafters were setting out to accomplish, but he does argue that the Adler/Cannon interpretation makes sense.... But the contrast with the ACA's Medicaid expansion destroys Ponnuru's argument rather than fortifying it....

The weakness of all these arguments explains why apologists for the latest legal war on the ACA like to alternate between them:

  • If a critic points out that you should take the context of the entire statute into account, just say that Congress was consciously trying to coerce the states, not create a federal backstop.
  • When people point out that this is nonsense, return to asserting that Congress messed up the language.
  • Repeat as necessary. 

Hopefully, at least five justices will see through this game of legal three-card monte.