Federalism

  • December 9, 2014

    by Caroline Cox

    Vikram David Amar writes at Verdict why the federalism lessons of the 2012 Affordable Care Act case weaken the argument in King v. Burwell.

    In Reuters, Joan Biskupic, Janet Roberts, and John Shiffman consider the small group of elite lawyers that dominate the Supreme Court docket.

    Conor Friedersdorf of The Atlantic writes about applying the “broken windows” theory to the police.

    At Bloomberg View, Noah Feldman reviews the recent Supreme Court case on Amtrak that considers how much lawmaking authority Congress can delegate to other bodies.

  • August 8, 2014
    Guest Post

    by Nicholas Bagley. Bagley is an Assistant Professor at University of Michigan Law School. 

    *This post originally appeared on The Incidental Economist. 

    Now that the government has asked the full D.C. Circuit to rehear Halbigsome commentators have suggested that it’s an inappropriate candidate for en banc review. A Wall Street Journal op-ed from a lawyer representing a right-wing health-care think tank, for example, says that en banc review ought to be reserved for “cases raising serious constitutional issues.” Halbig, though, is just a “straightforward statutory interpretation case.”

    This is wrong for so, so many reasons. Under the Federal Rules of Appellate Procedure, a case can be taken en banc if it involves “a question of exceptional importance.” The rule does not say “a constitutional question of exceptional importance.” No judge, to my knowledge, has ever suggested that the rule be read so narrowly.

    To the contrary, the rules are drafted in open-ended terms—“exceptional importance”—because cases differ in their importance along many different dimensions. Some cases are trivial in themselves but present novel legal questions that will affect hundreds of other cases. Others are of “exceptional importance” because they implicate questions of faith or principle.

  • August 7, 2014
    Guest Post

    by Robert N. Weiner, Litigation Partner, Arnold & Porter LLP

    *This post originally appeared on Balkinization

    On July 22, in Halbig v. Burwell, a panel of the D.C. Circuit ruled 2-1 that low income families cannot get the tax subsidies the Affordable Care Act granted to enable them to afford health insurance, if their states opted to have the federal rather than the state government set up health insurance exchanges. Within hours, in King v. Burwell, a unanimous panel of the Fourth Circuit held just the opposite, that subsidies are available on all exchanges established under the Act. (I filed amicus briefs on behalf of Families USA in both cases.) 

    In making its ruling, the D.C. Circuit panel simultaneously issued an order on its own initiative making clear that its judgment was not effective until the full Court of Appeals decided whether to reconsider the case. The panel perhaps recognized that the other judges on the Court might view the decision as out of step with the Circuit’s precedents. A decision by the en banc Court to reconsider will automatically vacate the panel opinion. If the majority of the Court then concludes that the panel decision was wrong, they will issue an opinion reflecting the correct result.

    In arguing against en banc review in a Volokh Conspiracy post on August 5, Professor Jonathan Adler quotes with evident approval a 17-year old disquisition by Judge Harry Edwards, the dissenter in Halbig, regarding the standards for en banc review. The temptation of scoring a “gotcha” against Judge Edwards appears to have displaced reasoned analysis to whether those views make sense in this case. For example, Professor Adler commends Judge Edwards’ 1987 view regarding the limited value of having the entire D.C. Circuit reconsider en banc the 2-1 vote of the three-judge panel. A vote of 6 out of 11 judges, it is claimed, has no greater “legal validity” than a vote of 2 out of 3. If the implication is that any panel decision is as likely as an en banc ruling to be correct, then it was overbroad in 1987, and it is particularly fallacious here. Human fallibility being what it is, judges sometimes get an answer wildly wrong. As a matter of probability and logic, 6 judges are less likely to go off the deep end than 2. 

  • July 24, 2014
    Guest Post

    by Abbe Gluck, Professor of Law, Yale Law School

    *This piece originally appeared at Balkinzation

    I had hoped to take a day off blogging about Halbig and King (the ObamaCare Subsidies cases), but I cannot allow another inaccurate narrative about ObamaCare to take hold. Over at Volokh, my friend Ilya Somin argues that the holding in Halbig is not absurd because Congress uses statutory schemes all the time that try to incentivize states to administer federal law (and to penalize them if they don't). It is true we see schemes like that all the time -- Medicaid is a prime example -- but the insurance exchange design is NOT one of them. This federalism argument was made before the D.C. Circuit and even Judge Griffith didn't buy it in his ruling for the challengers. I tried to dispel this myth back in March, when I wrote the following on Balkinization:

    “This is not a conditional spending program analogous to Medicaid.”
        
    The challengers' strategy in this round has been to contend that the subsidies are part of an overarching ACA "carrots and sticks" strategy to lure states into health reform and penalize them if they decline. On that version of the story, it might make sense that subsidies would be unavailable in states that do not run their own exchanges. In their view, the subsidies are therefore exactly like the ACA’s Medicaid provision (from appellants’ brief: “The ACA’s subsidy provision offered an analogous ‘deal’ to entice states to establish Exchanges – because Congress (wisely, in hindsight) knew it had to offer huge incentives for the states to assume responsibility for that logistically nightmarish and politically toxic task.”) 

    Putting aside the fact that no one thought the states wouldn’t want to run the exchanges themselves (indeed, Senators were demanding that option for their states), the exchange provisions simply do not work in the same way as Medicaid. Unlike the ACA’s Medicaid provisions, the exchange provisions have a federal fallback: Medicaid is use-it-or-lose-it; the exchanges are do-it, or the feds step in and do it for you. In other words, this isn’t Medicaid; it’s the Clean Air Act (CAA). If a state decides not to create its own implementation plan under the CAA, its citizens do not lose the benefit of the federal program -- the feds run it. The same goes for the ACA’s exchanges and so it would be nonsensical to deprive citizens in federal-exchange states of the subsidies. More importantly, if we are going to compare apples to oranges, the ACA’s Medicaid provisions have an explicit provision stating that if the state declines to participate, it loses the program funds (this was the provision at issue in NFIB v. Sebelius in 2012). The ACA’s subsidy provisions, in contrast, have no such provision, strong evidence that the subsidies were was not intended to be forfeited if the states did not participate. If the challengers are going to insist on strict textual arguments, this is exclusio unius 101: the rule of interpretation that provides that where Congress includes a specific provision in one part of the statute but does not include an analogous provision elsewhere, that omission is assumed intentional."
     
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    It may be true that the ACA’s politics have created a landscape no one ever predicted – one in which federalism-focused states, whose congressional representatives were demanding the states’ rights to establish exchanges instead of the federal government – have decided that politics is more important than federalism and opted out. But what’s happened in hindsight doesn’t change what happened when the statute was enacted and how the statute is actually designed. What happened when the statute was designed was that no one thought the states needed a carrot to do this and the statute was never designed as a "use or lose it" incentive, like Medicaid.

  • February 28, 2014
    Guest Post
    by Justin Pidot, Assistant Professor, University of Denver Sturm College of Law; Member, Board of Directors, ACS Colorado Lawyer Chapter; Faculty Advisor, University of Denver Sturm College of Law ACS Student Chapter
     
    Around the web, Supreme Court experts are offering cautious opinions about Monday’s oral argument in Utility Air Regulatory Group v. EPA, the Court’s latest climate change case. As expected, all eyes were focused on Justice Kennedy. In the New York Times, Adam Liptak suggests that a point made by Justice Kennedy “did not bode well for the agency.” In his post on SCOTUSBlog, Lyle Dennison has a more EPA-favorable view, suggesting that Kennedy’s “vote seemed inclined toward the EPA, though with some doubt.”
     
    Having read the transcript, I’m inclined to think that EPA is likely to lose, but that the decision may nonetheless be helpful to environmentalists in the long run.
     
    I suspect that Justice Kennedy may vote against EPA for two reasons. The first (and perhaps somewhat less serious) is based on the pseudo-science of counting the words a justice says during an argument. Political scientists have demonstrated that parties tend to lose when they are asked more questions, and that the amount a justice speaks during the argument provides insights into that justice’s inclinations. If that theory holds true, EPA is in trouble. Justice Kennedy spoke only twice during the argument presented for the industry challengers, uttering about 110 words, and he remained entirely silent during the presentation by the Texas Attorney General on behalf of the state challengers. In contrast, Justice Kennedy spoke seven times during Solicitor General Donald Verrilli’s argument on behalf of EPA, uttering approximately 180 words. Of course, the general trend that the number of words spoken by the Justices relates to a party’s likelihood of success doesn’t always play out in individual cases. 
     
    My second reason for believing that the Supreme Court may rule against EPA is a more specific to this case. Justice Kennedy’s questions appear to express skepticism about EPA’s position.  At one point Justice Kennedy said to the Solicitor General: “I couldn’t find a single precedent that strongly supports your position. . . . [W]hat are the cases you want me to cite if I write the opinion to sustain your position?” Justice Kennedy also appeared to want assurance that an EPA loss would not be too significant an event, asking the Solicitor General: “Just to be clear, you’re not saying . . . that if you’re denied the authority you seek here, there can be no significant regulation of greenhouse gases under the Act?” Soon thereafter, perhaps sensing the mood among the Justices, Justice Sotomayor followed up, asking “If you were going to lose. . .” (The Solicitor General interrupted before the question finished, saying “I knew you were going to ask me that question.”).