Affordable Care Act

  • November 14, 2014

    by Caroline Cox

    In The Washington Post, E.J. Dionne Jr. considers whether the latest Supreme Court challenge to the Affordable Care Act, King v. Burwell, will force Justice Scalia to separate from his principles.

    John Harwood of CNBC asserts that “the justices have placed themselves in a political vise grip” by accepting to hear the legal challenge to Obamacare.

    At SCOTUSblog, Abbe R. Gluck also examines King v. Burwell and argues the case “is about the proper way to engage in textual interpretation.”

    In other Supreme Court news, Dahlia Lithwick asserts in The New Republic that there is not enough diversity of experience among the Supreme Court justices.

    At Hamilton and Griffin on Rights, Janai Nelson looks at the important role of race in the Alabama redistricting cases. The ACS panel discussion of the cases from earlier this week can be found here

  • November 13, 2014
    BookTalk
    Judging Statutes
    By: 
    Robert A. Katzmann

    by Brianne Gorod (@BrianneGorod), Appellate Counsel at the Constitutional Accountability Center and former clerk for the Hon. Chief Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit. Gorod interviewed Katzmann about his new book, Judging Statues.

    The Supreme Court made lots of headlines recently when it decided to hear King v. Burwell, a case about the meaning of the Affordable Care Act.  It’s a good reminder: although much of the talk about the federal courts focuses on constitutional questions, much of the work the federal courts do involves statutory ones.  Indeed, for Supreme Court justices and other federal judges, a significant part of their job—and an incredibly important part—is attempting to understand and give meaning to the laws passed by Congress. 

    In his new book Judging Statutes, Robert A. Katzmann, Chief Judge of the United States Court of Appeals for the Second Circuit, provides readers with insight into how federal judges can—and should—go about that task.  As Judge Katzmann explains, “[o]ver the last twenty-five years, there has been a spirited debate in the courts, Congress, and the academy about how to interpret federal statutes,” with Justice Scalia championing the view that courts should “look to . . . the words of the statute, and to virtually nothing else.”  In his book, Judge Katzmann provides a compelling defense of the alternative view, arguing that courts should look to legislative history to help understand and give meaning to the laws that Congress enacts.  As he puts it, “In our constitutional system in which Congress, the people’s branch, is charged with enacting laws, how Congress makes its purposes known—through text and reliable accompanying materials—should be respected, lest the integrity of legislation be undermined.”

    The work has already received considerable attention—for example, in Justice Stevens’ essay in The New York Review of Books, Jeffrey Toobin’s column in The New Yorker, Norman Ornstein’s column in The Atlantic, Tony Mauro’s story in the National Law Journal, Ronald Collins’ post on the blog Concurring Opinions, and on Brian Lamb’s C-Span Q & A program.   

  • November 13, 2014

    by Caroline Cox

    Linda Greenhouse asserts in The New York Times that the Supreme Court’s decision to review the challenge to the Affordable Care Act in King v. Burwell is “a naked power grab by conservative justices.”

    Richard L. Hasen writes in the Los Angeles Times that Chief Justice John Roberts may not protect the Affordable Care Act in the new case before the Supreme Court.

    In the New Republic, Michael Lewis argues that growing wealth inequality is bad for the poor and wealthy alike.

    At the blog for the Brennan Center for Justice, Avram Billig examines the campaign finance victories of the recent election.

    Nina Totenberg at NPR examines the oral argument for the Alabama redistricting cases that took place on Wednesday at the Supreme Court. 

  • November 12, 2014

    by Caroline Cox

    Meredith Rodriquez reports in the Chicago Tribune that Judge Abner Mikva, the former Illinois congressman and member of the ACS Board of Advisors, is to receive the Presidential Medal of Freedom this month.

    In The Atlantic, Stephen Lurie asserts that the best way to fix mass incarceration is for President Obama to take more active role.

    David H. Gans of the Constitutional Accountability Center continues its series on Chief Justice John Roberts with a look at campaign finance and voting rights.

    At the New Republic, Brian Beutler explains why the Supreme Court’s decision to hear another challenge to the Affordable Care Act should  not worry supporters.

  • November 11, 2014
    Guest Post

    by Timothy S. Jost, Professor of Law, Washington and Lee University School of Law

    It is arguable that defenders of the Affordable Care Act lost the Supreme Court in 2012 on the Commerce Clause issue in NFIB v. Sebelius when the media accepted the plaintiffs’ meme that the case was really about whether the government could make Americans eat broccoli rather than about protecting insurance markets from adverse selection and providers from free riders.  With another ACA case before the Supreme Court, the challengers are once again aggressively marketing their narrative to the media.  It is important that the media approach their claims skeptically, or at least intelligently, so that the American public, and the Court, understand what the case is really about—and what it is not about.  So let’s get this much straight:

    Congress knew that not all states would operate exchanges and intended the federally facilitated as well as the state operated exchanges to offer premium tax credits. 

    As is amply documented in the briefs filed in these cases by the members of Congress who drafted the ACA, Congress understood that a federal fallback exchange was not only necessary for constitutional reasons because Congress could not force the states to operate exchanges, but also for practical reasons because some would not.  The challengers have made up a narrative about Congress limiting premium tax credits to state exchanges to bludgeon them into setting up their own exchanges, but there is absolutely no support for this in the legislative record.

    If the Court chooses to ignore Congressional intent, it cannot ignore the text of the statute.

    Although congressional intent is clear, it is not essential for the Court to look at the legislative history, or even to consider Congress’ clear purpose to extend coverage to all Americans, to reach the right result.  If the Court looks only at the text of the ACA—but looks at the entire text and doesn’t merely cherry pick one phrase—this is an easy case.  Sure, the words “established by the State” are found in the ACA, but the ACA also provides that federally facilitated exchanges have all of the powers of state operated exchanges; federally facilitated exchange effectively and by definition becomes the “Exchange established by the State”: and HHS must ensure that “residents of each State may apply for enrollment in, receive a determination of eligibility for participation in, and continue participation in” the premium tax credit program.  Legitimate textualism requires attention to the entire text.  Literally dozens of provisions of the ACA become incongruous if a court focuses only on the “established by the State” phrase without understanding its context.