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King v. Burwell Oral Arguments: 'Such,' Coercion, and Kagan's Clerks

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By Mark Wilson, Esq. on March 04, 2015 12:07 PM

Cases of statutory interpretation are rarely as sexy as those involving constitutional issues. But King v. Burwell is among the most important cases of this term, and the Supreme Court heard oral arguments today.

If the justices agree with the petitioners, then one of the three legs of the Affordable Care Act -- subsidies for low-income Americans -- would be cut off, effectively neutralizing the ACA itself.

Much Ado About 'Such'

The ACA defines an "Exchange" as one established pursuant to Section 1311 of the ACA. In that section, it offers two methods for establishing an exchange: Either it's created directly by the state or, if a state doesn't set up an exchange, then the federal government is directed to "establish and operate such exchange."

In Justice Breyer's mind, the "such" there refers to the Section 1311 definition of "exchange," which is established on the state's behalf by the federal government but still retains its character as a "state" exchange. "So what's the problem?" he asked Michael Carvin, attorney for petitioners.

Justice Kagan, as is becoming her trademark, tried to introduce some common sense into the mix, offering a "simple daily life kind of example" parallel to the language of the affordable care act:

So I have three clerks, Mr. Carvin. Their names are Will and Elizabeth and Amanda. OK? So my first clerk, I say, Will, I'd like you to write me a memo. And I say, Elizabeth, I want you to edit Will's memo once he's done. And then I say, Amanda, listen, if Will is too busy to write the memo, I want you to write such memo. Now, my question is: If Will is too busy to write the memo and Amanda has to write such memo, should Elizabeth edit the memo?

Carvin's position forced him to disagree and say that, no, Elizabeth shouldn't edit the memo because Will didn't literally write the memo. Kagan responded, "You run a different shop than I do," then elaborated, "because in my chambers, if Elizabeth did not edit the memo, Elizabeth would not be performing her function."

Predictably, Justices Alito and Scalia vehemently disagreed about the "such" language when questioning Solicitor General Donald Verrilli, who argued that "such Exchange" referred to the exchanges established either by the states or by the federal government. Scalia was insistent that a state exchange had to be distinct from the federal exchange: "[I]t seems to me 'such' means an Exchange for the State rather than an Exchange of the State. How can the government --­­ Federal government -- establish a State Exchange? That is gobbledygook. You know, 'such' must mean something different."

How'd It Go?

The battle lines are essentially drawn, as you might expect. Chief Justice Roberts didn't really tip his hand as much as the other justices, though he did help Carvin out a little by observing that his arguments about the ACA now are different from his arguments in 2013 because, well, he lost that case.

Among the conservatives, Justice Kennedy was at least a little concerned about outcomes. Questioning Carvin, the justices wondered whether, if his argument were correct, the statute would be unconstitutionally coercive. Justice Kennedy crucially said it might not be unconstitutional, but it would create tremendous problems for the insurance market. Scalia, on the other hand, couldn't care less about "disastrous results" if the only way to avoid them would be to unreasonably interpret the law.

Of course, the real magic here is that the statute is arguably ambiguous. Let's not pretend that, when the opinion comes down in June, the winning side will have discovered the objective "Ur form" of the law. It will just be an interpretation that happened to sway more of the justices. Such as it is.

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