Justices Kennedy, Roberts are ‘votes in play’ //former DOJ attorney Nicholas Bagley

Justices Kennedy, Roberts are ‘votes in play’
Andrew Sprung interviews Michigan law professor and former DOJ attorney Nicholas Bagley about yesterday's oral argument in King v. Burwell.

"Kennedy’s attention to federalism concerns
 Andrew Sprung: What did we learn from today’s oral argument?
 Nicholas Bagley: We learned a few things but not much more than we knew already. It’s safe to say after the oral argument that the only potential votes in play appear to be those of Justice Kennedy and Chief Justice Roberts. The Chief was more or less silent which doesn’t give much insight into how he’s thinking about the case. It wouldn’t be unreasonable for him simply to watch the fireworks knowing that his concerns would be thoroughly ventilated by his colleagues, as I think they were. Justice Kennedy was more interesting because he clearly had a view about serious federalism concerns that would be raised by accepting the plaintiffs’ interpretation. [That is, their claim that states would forfeit premium subsidies if they did not establish their own exchange might suggest that the law unconstitutionally coerced the states into forming their own exchanges.] But he also left room for himself to say that the statute is unambiguous and thus there’s no room to avoid those federalism concerns [that is, even if the law is potentially unconstitutional, it may be unambiguously written that way.] I read him too as being at least somewhat equivocal.
 Sprung: What about Justice Kennedy’s other moment in which he voiced arguments put forward by the plaintiffs – to the effect that if the statute is ambiguous, the IRS might not have the authority to resolve the ambiguity? 

Bagley: That Chevron point should be getting more attention. [Chevron is a case in which the Supreme Court held that if a statute’s language is ambiguous, courts should defer to the agency charged with resolving the ambiguity.] The upshot of that argument is that the question of whether the federal exchange is authorized to credit subsidies to qualified buyers of private plans is too important to leave to the IRS – we shouldn’t lightly assume that Congress delegated the authority to the IRS to resolve that ambiguity. That’s especially so, he said, in the context of tax credits, which are a kind of exemption from taxation. There’s a canon of statutory interpretation suggesting that exemption from taxation ought to be construed narrowly. Justice Kennedy was picking up on those arguments in the petitioners’ brief, I filed an amicus on behalf of the government that disputes all those points But if you buy those arguments you’d be skeptical of the claim that Congress meant to give the IRS the authority to craft the rule. I don’t think those arguments are convincing or that they will carry the day.

 Sprung: What about Solicitor General Verrilli’s response – that a specific section of the ACA’s amendment of the tax code [Section 36b (g)] gives the IRS explicit authority to make any decisions necessary to implement the tax credits? 

Bagley: It was an important response. It’s one that the government made in its brief and that Justice Kennedy is surely aware of. Look, I find that argument convincing – I submitted a brief endorsing it. Whether Justice Kennedy buys it is very hard to say from the transcript. All of this is as much to say: don’t make too much of individual statements in oral argument. Yes, he expressed some skepticism about the federalism argument, but Justice Kennedy is always going to signal that he takes both sides seriously. You can’t read too much into any question he asks, whether of the government or of the plaintiff’s attorneys."

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