ACSBlog

  • December 19, 2014
    Guest Post

    by Nicholas Bagley, Assistant Professor of Law, University of Michigan Law School. This piece first appeared at The Incidental Economist.

    Before the Supreme Court granted King v. Burwell, the Journal on Health Politics, Policy and Law invited me to write a counterpoint to an essay by Jonathan Adler and Michael Cannon, two of the architects of the litigation. I’m pleased to report that drafts of their point and my counterpoint are now available.

    Writing the counterpoint allowed me to pull together a punchy, non-technical, and thorough explanation for why I think the challengers should lose this case. It also gave me a chance to emphasize the strongest argument in the government’s favor—a point that’s at risk of getting lost in the fog of statutory analysis.

    To prevail, it’s not enough for the King challengers to show that it’s possible to read the ACA to eliminate tax credits from states that refused to set up their own exchanges. They must also demonstrate that the ACA does so unambiguously—and that the IRS’s contrary interpretation is therefore unreasonable. Under Chevron, if the ACA could be read in a couple of different ways, the courts owe deference to the IRS’s authoritative decision about how best to read it.

    The challengers must therefore believe that the judges and commentators who read the statute differently than they do—including yours truly—are all behaving unreasonably. That’s an extraordinary claim, one that, as Adrian Vermeule has noted, “verges on self-refutation.” As I explain in my counterpoint:

    [E]ven if you think that Adler and Cannon’s [interpretation] is plausible, maybe even attractive, the contrary interpretation offered by the government is at least reasonable. That brings me to the aspect of their argument that troubles me the most: their unyielding conviction that they’ve identified the only possible construction of the ACA. Nowhere do they so much as acknowledge the possibility that maybe, just maybe, they’re wrong.

    That’s because they can’t admit to doubt. Because of the deference extended to agency interpretation, doubt means they lose. But their unwillingness even to acknowledge ambiguity reflects an important difference between legal advocacy and neutral interpretation. To be clear, Adler and Cannon deserve immense credit for their lawyerly ingenuity: they’ve constructed a facially plausible argument in support of an exceedingly strange interpretation of the ACA. But the courts would violate their obligation of fidelity in statutory construction if they mistook that ingenuity for genuine obeisance to congressional will. The latest challenge to the ACA is political activism masquerading as statutory restraint.

  • December 19, 2014

    by Rebekah DeHaven

    This week we saw a strong ending to the 113th Congress with the confirmation of all twelve district court nominees who were on the Senate floor. On Tuesday, December 16, the Senate confirmed all nominees by voice vote, with the exception of one who was confirmed by a roll call vote (noted below):

    • Haywood Gilliam, Northern District of California;
    • Amit Priyavadan Mehta, District of D.C.;
    • Jorge Alonso, Northern District of Illinois;
    • John Blakey, Northern District of Illinois;
    • Allison Burroughs, District of Massachusetts;
    • Stephen Bough, Western District of Missouri, 51-38;
    • Joan Azrack, Eastern District of New York;
    • Loretta Biggs, Middle District of North Carolina;
    • Robert Pitman, Western District of Texas;
    • Amos Mazzant, Eastern District of Texas;
    • Robert Schroeder, Eastern District of Texas; and
    • Elizabeth Dillion, Western District of Virginia.

    These votes bring 2014 to a close with an impressive total of 89 judicial confirmations. The 113th Congress concludes with only 42 current judicial vacancies and 25 future vacancies. When President Obama took office in 2009 there were 55 current judicial vacancies, and this week's votes finally brought the current number of vacancies below where the President began. In President Obama’s six years, there have been 307 confirmations, adding significant diversity to the federal bench.

    When the Senate returns in January there will be 43 current vacancies and 24 future vacancies.[1] Of the 43 current vacancies, 12 are now considered judicial emergencies. All pending nominations were returned to the President at the end of the Senate session, and President Obama will need to re-nominate them at the beginning of the 114th Congress.



    [1] A Western District of New York future vacancy will become current on 1/3/2015. 

     

  • December 19, 2014

    by Caroline Cox

    The Editorial Board of The New York Times praises the new policy in New York that ends routine insurance discrimination against transgender individuals.

    Joel Rose reports for NPR on the Justice Department’s new lawsuit over the conditions at Rikers Island Jail.

    At Salon, Joe Conason argues that outrage over the new Cuba policy is misplaced.  

    Maurice Chammah explains at Slate why capital punishment cases are declining even in Texas.

    At The Atlantic, Conor Friedersdorf considers how insensitivity and trigger-warnings are treated at law schools.

  • December 18, 2014

    by Jeremy Leaming

    In a surprising, unsettling move late in the year, the U.S. Supreme Court decided to hear a challenge to an Obamacare provision integral to keeping the popular health care law functional.

    In case you missed them, we suggest some more interesting, persuasive and measured responses to the statutory challenge below. We provided other noteworthy and powerful articles, earlier in the fall, which are available in this post.

    The material we’re highlighting now is from legal scholars, who in different ways have examined the legal argument against crucial language in the Affordable Care Act meant to help low-income Americans afford health care coverage. (Also see the Dec. 18 piece for ACSblog by Georgia State University law school Professor Neil Kinkopf.)

    Andrew Koppelman, the John Paul Stevens Professor of Law and Professor of Political Science at Northwestern University, in a piece for the New Republic looks at the efforts to topple the ACA. A legal argument aside, Koppelman writes, “When is it acceptable to deliberately aim to harm huge numbers of people in order to score a symbolic point?” If the argument were to win at the Supreme Court, which is likely to hear oral argument early in 2015, “about 4.5 million low-and-middle workers” in numerous states would lose health care coverage, he notes.

    At The Incidental Economist, University of Michigan law school professor Nicholas Bagley, who posted for ACSblog earlier this year on the argument when it was before the D.C. Circuit, provides a grouping of his articles, posts and podcast discussions about the matter now before the Supreme Court.  “My first post,” he wrote was devoted to showing why “the government’s contextual reading of the ACA makes better sense of the statute than the challengers’ cramped reading of a single provision. A district court judge in D.C. endorsed that reasoning the day after I wrote the post; I wrote about his decision here.”

    A compelling and accessible look at the statutory challenge to the ACA comes from Professor David Ziff, a Law Lecturer at the University of Washington School of Law. Ziff focuses on the legal argument being made against the ACA, and the need to seriously engage it.

  • December 18, 2014

    by Caroline Cox

    The Editorial Board of The New York Times considers President Obama’s historic decision on relations with Cuba.

    In The Atlantic, Garrett Epps considers the ruling in Heien v. North Carolina and when cops don’t know the law.

    Noah Feldman writes in Bloomberg View about hacking, the First Amendment, and “The Interview.”

    At Think Progress, Nicole Flatow reports on changes to sentencing from drug crimes that may help alleviate America’s crowded prison system.

    At the blog for the Brennan Center for Justice, Ciara Torres-Spelliscy considers the 14 things learned about money in politics in 2014.