I am tempted to scream “STFU” once again to the Supreme Court, but Linda Greenhouse has said it in a much more refined and powerful way

Despite a poorly drafted statute, the Fourth Circuit in King v. Burwell held that the Affordable Care Act (ACA), as interpreted by the Internal Revenue Service, allowed for subsidies to participants if they purchased the insurance on a federal, rather than, a state exchange. Then, the Supreme Court decided to review that case. There was no split in the Circuits. There is no urgency to grapple with a simple question of statutory interpretation.

While it is true that a panel of the D.C. Circuit had gone the other way, that decision was vacated pending an en banc hearing. Why then did the Supreme Court take King v. Burwell for review now? Professor Bickel, the law professor who gave us the elegant theory of “passive virtues,” would have shaken is head in stunned disbelief. Indeed, it is almost like the members of the Court are looking for a fight.

Linda Greenhouse, with whom I seldom agree, has written a long article on this subject in the New York Times.  I urge you to read it. She concludes her powerful piece this way:

So this case is rich in almost every possible dimension. Its arrival on the Supreme Court’s docket is also profoundly depressing. In decades of court-watching, I have struggled — sometimes it has seemed against all odds — to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week, I’ve found myself struggling against the impulse to say two words: I surrender.

Like Ms. Greenhouse, I, too, am about to surrender. At the Supreme Court, currently dominated by Justices nominated by Republican Presidents, five of the Justices speak and write glowingly about judicial modesty and restraint. There is increasing evidence that this is empty rhetoric. At the Court, law has seemingly become politics by another name.

Like Ms. Greenhouse, the Court’s “activist” behavior depresses me no end. I hate admitting that I am and have been a naive dumb ass.


PS For what it is worth, I honestly don’t care whether the ACA lives or dies.



65 responses

  1. Will the D.C. Circuit go forward with its en banc review? It could, because the case is pending on its docket and argument has been scheduled. And if it does and–as is widely expected–reverses the panel and upholds the law, that will be further egg on the Supreme Court’s face. And if the Supremes then reverse the unanimous view of all circuits that have passed on ACA, in a case that is front and center on the political pages, they will not only be throwing the nation’s healthcare system into chaos, but also delivering a powerful blow to the prestige and authority of their own institution.

    Partly because of that, I am less certain than some commentators that the court will declare that citizens of 36 states should be deprived of tax benefits on account of a small anomaly in drafting. As we all know, it takes four justices to grant cert, but five to overturn the court below. Perhaps Justice Roberts–or one of his colleagues on what is familiarly thought to be the “conservative” bloc–will consider that the institutional position and integrity of the court is more important than the passions of the moment. I hope so, anyway.

    So, Judge, you don’t care if ACA lives or dies. Is that because you, like me, don’t need to rely on it? (I’m happily on socialized medicine, a/k/a Medicare.)

  2. “Power, not reason, is the new currency of this Court’s decisionmaking.” Payne v. Tennessee, 501 U.S. 808, 844 (1991)(Marshall, J., dissenting). In fact, it was the first sentence of his dissent.

  3. Thank you, Jon Margolis – it is so easy to say “I don’t care” when you don’t have to worry about health insurance. Yes, Hercules, you have been deceived by a group of folks who claim that they hate activist courts – this group is about as activist as it gets!

  4. Much as I’m relatively agnostic on the political issue, I found Greenhouse’s article nearly as disturbing as Krugman’s before her. She grossly misinforms as to Chevron deference, which doesn’t apply here as the language is clear, even if it fails to state what Congress thought it was supposed to state, and the IRS is not charged with administering the statute.

    That this is a political hot button is clear, but the public’s understanding of law has, and will, suffer terribly because of the failure to draft a law (or, as its naysayers suggest, for assuming an incentive that didn’t work). Politics has nothing to do with proper statutory construction or the applicability of Chevron deference. Greenhouse’s article makes the problem worse. That’s not acceptable.

  5. Jon,

    I am sure that you are right about your last point. If I was sick as a dog with cancer, and had no insurance, I would be all for the ACA. Indeed, the time I have spent being treated for cancer has also added to my empathy for those who are ravaged by the disease but who don’t have health care. Luckily, the doctors I see go out of their way treat everyone. It is unfair that those doctors must shoulder that burden.

    My PS was meant to suggest that I don’t care one way or the other as a matter of law whether the ACA lives or dies. That said, I believe the ACA should have easily survived a constitutional challenge.

    If I had a political ax to grind, it would be this: Our President made a poor choice when he put all his political muscle behind the ACA instead of backing the Simpson/Bowles Commission on the federal government’s tax and spending policies. I would have much preferred that our President back the Commission, and expend his political capital on that issue, rather than on health care. That is because I believe that the President could not do both at the same time.

    In my opinion, what the Commission was doing was far more important to the long term viability of this country, including “safety net” policies, than implementing universal health coverage now.

    All the best.


  6. Was there ever (and I mean ever) a time when the Supreme Court was NOT political? I know that many academics have expressed the view that, at least at times, it wasn’t, but, really, it’s always taken on and decided the highly politically-charged questions of the moment. Marbury v. Madison. Upholding Jim Crow. Thwarting the New Deal. Korematsu. The Nixon Tapes. To name a very few. And the ultimate political issue: stopping a state recount and installing a president. The shortcoming of those who hagiographize (is that a word?) any of the prior Supreme Courts as nonpolitical simply aren’t well-read in (or, more likely, overlook) the politics of the day. My own view? It’s that this Court takes more politically charged cases than its predecessors because, more and more, political fights are spilling over into the courts rather than being fought exclusively in elections and in the other two branches of government.

  7. SHG,

    Fair point. But whether the Supreme Court should exercise its discretion to take the case is what I consider the most important part of her article.

    All the best.


  8. This one is personal. Right now, I am completely dependent on the ACA and the subsidy I receive despite living in a state with a Republican legislature that refused to set up an exchange. I don’t know how I can survive without it.

  9. There is much truth to what you say. But Dred Scott, the early New Deal cases, Korematsu and Bush v. Gore are black marks on the court’s history, self-inflicted wounds. So while the Supreme Court follows the election returns, it’s usually better if it waits twenty years to do so.

  10. I have no beef with her (or your) outcome. I have a beef with her misstating law to get there. I have a beef with making people stupider about the law to reach a desired end. Maybe it’s just me. I get all hung up on this integrity thing.

  11. Respectfully, I have never understood your naivete on this particular issue. For example, I have heard you state on this blog and in person that you attempt to write an opinion that will not be overturned by the 8th circuit because you do not like being overturned. Is it political to write an opinion that caters to what you think the circuit court will do rather than what you think the law is? Is the law what the appeals court says or what you believe the law actually is? Are they able to “divine” the meaning of the law more clearly than you? Is your desire not to be overturned motivated by thoughts of a promotion or other personal ambition? Is this not the “politics of the law”?

    However, the above is double edged sword. Would you be playing politics by challenging your superiors? This is a major difference between yourself and, for example, Judge Bennett in terms of judicial philosophy. With sentencing issues, Judge Bennett has been overturned many times by the 8th Circuit. He doesn’t seem to care about being overturned (maybe he even likes it). For that reason, he has picked fights, been overturned but later upheld by the Supremes and actually changed “the law.” What would have happened if he capitulated to what he expected the 8th Circuit to say (like you did/do)? If he had capitulated and not later won “the law” would never have been uncovered. But what about those times he just gets overturned. Is he just playing politics and losing? Is he activist for challenging or are you passive for accommodating? Does his adoption of an aggressive judicial philosophy advance his personal ambitions? I believe you are both playing “politics with the law” in your own way because the outcome for my clients depends more on their assigned judge than “the law.”

    I think the next step in the “legal realism” is to ask how else it might be done. You and your fellow judges are human beings and I’m not sure what more society could expect. (Isn’t that the entire point of your blog?). There are no good answers to the above and I don’t mean to cast aspersions in either direction. Either edge of the sword involves a “political” (I would say, human) determination. Sure, a little restraint from the Supremes in the name of good P.R. would be nice. This is especially true because they are the only part of the judiciary the average American knows anything about. But that is just a facade. In the end, human beings with power are drawn to exercising that power. When they exercise the power they will do what they think is correct. “Correct” is in the eye of the beholder. Judges are smart enough to find a plausible justification for damn near anything. So, get real and accept human nature. It is human nature that can be disheartening – not the legal system.

  12. I find this comment nearly as disturbing as Greenhouse’s article. It grossly misinforms at to Chevron deference, which the Fourth Circuit held in King v. Burwell does apply here and Judge Edwards’ dissent in Halbig held should apply. The IRS was delegated authority with HHS to jointly administer the ACA, as Edwards pointed out in his dissent, and although you and the majority in Halbig may believe that “the language is clear,” the Fourth Circuit and Judge Edwards concluded otherwise, and having read the opinions I think (for what little my thoughts matter) that Judge Edwards was right that the majority opinion in Halbig “ignores the obvious ambiguity in the statute and claims to rest on plain meaning where there is none to be found.”

    Politics should have nothing to do with proper statutory construction or the applicability of Chevron deference, but often it does. Pretending that this is a clear case of an unambiguous statutory directive makes the problem worse. That’s not acceptable.

  13. shg proper construction or indeed reading itself demands a principal of charity which assumes writer is not nuts, except in those cases where you are corresponding with a nut. A mindless literalism is no part of appropriate construction. If public understands this is SCOTUS does not it is arguably the Court which does not understand.

  14. Jon never talk real economics in NE you just make folks angry. Carl Curtis did not approve of deficit spending and neither does the Judge.

  15. Young Lawyer, you maybe right but Holmes thought Frankfurter an upward and onward boy who thought the world would be better when women and pianos were held in common, yet was willing for the most part to defer to legislative policies he found silly, and you would never know that FF may have been one of the most leftish of Justices. But you are probably right in adopting political Augustinianism, it happens to most lawyers.

  16. The 4th Cir. applied Chevron deference, but as a rubric rather than upon any rationale:

    Turning to the merits, “we review questions of statutory construction de novo.” Orquera v. Ashcroft, 357 F.3d 413, 418 (4th Cir. 2003). Because this case concerns a challenge to an agency’s construction of a statute, we apply the familiar two-step analytic framework set forth in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). At Chevron’s first step, a court looks to the “plain meaning” of the statute to determine if the regulation responds to it. Chevron, 467 U.S. at 842-43. If it does, that is the end of the inquiry and the regulation stands. Id. However, if the statute is susceptible to multiple interpretations, the court then moves to Chevron’s second step and defers to the agency’s interpretation so long as it is based on a permissible construction of the statute. Id. at 843.

    The “because this case concerns a challenge to an agency’s construction of a statute” language is not a holding, and is not what Chevron deference provides. Rote application, without any apparent consideration of when and why an agency is due deference in its administration of a statute, is hardly a foundation to rely on.

    The IRS does not administer the ACA. The IRS has no administrative expertise in the ACA to which a court should or could defer. This isn’t Chevron deference worthy, and the 4th Circuit’s rote mention hardly changes what Chevron deference is of when and why it’s applied.

  17. Jon,

    I am sorry. Professor Krugman has no credibility me with save for the research he did that won him the big prize. (And that research by the way has little do with anything he writes about including governmental fiscal and monetary policy.) He is now a propagandist who trades on his former glory. All the best.


  18. Da Man,

    No, I don’t think so. I am always happy to eat my words, or even crow for that matter, when the occasion warrants. Frankly, I don’t care who wins, and, as Scott Greenfield has pointed out, the better argument may well be that the statute should be read as it is plainly written. My bitch with the Court is that the Justices ought to avoid getting involved when they can, and they certainly could have avoided doing so here.

    All the best.


  19. Roger,

    I agree with almost everything that you and Scott have written regarding the Fourth Circuit opinion. But a Circuit Court being wrong in a civil case like the instant case, and even grievously so, is not a reason for the Court to get involved.

    I am truly sorry if I was not clear. All the best.


  20. Young Attorney,

    I had a long comment prepared and then lost it. (Not to be a baby, but my left hand remains partially numb from chemo and when I type I frequently hit the wrong key.) Anyway, I love your comment. It asks many of the right questions, and it is just snarky enough to catch the eye.

    Here is my bottom line reply: I think you are confusing legal realism with the Critical Legal Theory movement. Legal realists acknowledge that the life of the law is experience and not logic, but believe that law is not politics. CRITs believe that law is politics, and we ought drop any pretense to the contrary. That’s where you and I disagree.

    All the best.


  21. RGK,

    Like you, “I honestly don’t care whether the ACA lives or dies.” (As a policy matter, I prefer single-payer.) But, your opinion that King involves “a simple question of statutory interpretation,” is simply wrong.

    The case involves fundamental constitutional separation of powers concerns. This point is brought home most powerfully and persuasively in the cert. petition stage amicus brief filed on behalf of the Cato Institute, et al. (The brief can be found on SCOTUSblog.) In fact, if I were to speculate, I suspect that the separation of powers issue resonated with at least five Justices, especially the Chief whose vote is presumably critical to the outcome in King.

    Respectfully, I would suggest that you read that brief. It may change your opinion regarding the constitutional significance of King. Or, it may not?



  22. You know, it’s funny. Just a few months ago Chief Justice John Roberts gave all the students at the Law College a nice little speech, styled as a “fireside chat.” It was filled with reasons why he wanted the public to stop viewing the court as a political entity.

    Sometimes, these things just make you smile.

  23. shg,whether or not Chevron encompasses deference to agency construction via rule where no direct enforcement authority is hardly a question so clear as to. rise to the level of an issue of integrity. God in his mercy has kept me from reading the case in 10 years and my security setting blocks Federal Court opinions along with nude pictures of Kim Kardashian, but I recall more room for debate.

  24. You are absolutely correct as to your comments on Krugman, a propagandist and apologist for misguided government economic policies.

  25. Perhaps the name should be changed to: “Supreme Municipal Court and Most High Notary Public.” But then that would be unfair to Municipal Court Judges and Notary Publics who quietly go about their duties.

  26. Several of you are being quite disingenuous when you say there is no circuit split and gloss over the fact that the Democratic Senate used the highly unusual nuclear option to pack the DC Circuit court precisely as a proactive line of defense against the ruling that they feared and which occurred. So you can see that politicians have made politicized decision to go against Senate convention to protect a Law they want. So how can anyone honestly say this was not already politicized by Harry Reid? The Supremes are merely responding to this corruption rather than being activist.

    If a referee in a game kept putting time back on the clock or calling balls as strikes we could all agree that the game was rigged. The Dem Senate rigged the DC Circuit by packing it. It is appropriate for a higher governing body to step in and sanction an injustice and restore fair play in the game.

    You all don’t get to have it both ways. You cannot cry about an activist Supreme Court while doing incendiary cheating that virtually compels the governing body of Referees to step in to guard the integrity of the Game.

    There was in fact a circuit split. Then a tainted DC Circuit threw a late flag and called the strike a ball. The Supreme Court would surely have preferred to stay out of it but such an injustice of Court-Packing should not stand when it was clearly a cynical tactic to prevent review of a legitimate question of law.

  27. Judge, There is a school of thought that could never see much difference between realism and the Crits, a lot of early Jerome Frank would support Young Lawyers view, while KL in his later years, after he and Sonya fled to Chicago would support yours. Conversly most Crits are talking about policy when they talk about politics, and not partisan politics. Both groups were too diffuse to allow easy characterization. Sorry the pompous law prof in me just awoke.

  28. EBR, Can not resist noting that bankruptcy originally had something to do with a broken bench, though I do not buy your story of DC Cir as the one that is broken
    Maybe ideological differences now run so deep that we no longer have a share language of public law, or maybe we never did and I did not pay attention.

  29. I too don’t care what happens to this particular act. To my thinking, doesn’t it come down to this: if Congress showed in the Act that it knew how to distinguish state-established exchanges from federally-established exchanges (and I don’t know if they showed that or not in this Act), shouldn’t that be conclusive? Aren’t we supposed to give effect to what the statute says, rather than what the proponents now wish it had said? Is the law law, or is the press release law?

  30. Toby, what you say reeks of “common sense”. You expect a high and mighty court to recognize that? Plus, the activists, who are flying their flags here, will surely object to such simple solutions.

  31. MOK, reeks okay, common sense no, the degree of literalism you and Toby advocate is not common sense, since it involves pulling a sentence out of a statute and giving it an apparently literal construction which makes no sense in the light of the rest of the statute. That gap between whole and part we misname ambiguity though perhaps equity would be a better name. Has nothing to do with press releases. You are apply what Frankfurter once call the Little Jack Horner mode of interpretation pulling a passage out of the statute like a plum from a pie and saying what a good boy am I.

  32. Thank you for being predictable. Yes, yes, this Little Jack Honer is clearly not smart enough to engage in these high-minded, “important” ivory tower discussions. I shall now slink back under my rock and enjoy my humble pie.

  33. What if the Court upholds the IRS rule? You suggested that wouldn’t undermine your criticism here, because they still shouldn’t have granted review. But couldn’t they recognize the serious effects of uncertainty while the circuit courts sort out this issue?

    In other words, if you are a Justice and you read both the Fourth Circuit and D.C. Circuit panel opinion, and both look at least reasonable — making the issue likely to create further serious disagreement — can’t you conclude that there’s a decent chance the issue will come to the Supreme Court at some point, and that there’s at least a decent chance you will be persuaded to invalidate the rule (adopting the D.C. Circuit panel’s reasoning)?

    If you can form that view on the current landscape — as I think a Justice easily could — why can’t that Justice also conclude that the real-world effects of leaving this issue unresolved for potentially years are worse than deciding it now, one way or the other?

    The Administration made that same decision in taking the constitutional challenge to the Supreme Court rather than seeking en banc review in the Eleventh Circuit.

  34. MOK, it is hardly ivory tower, it is just a variant of my read the policy lecture from insurance which was Hessian training not Hegel. I have waited since reading FF’s article 55 years ago to use Jack Horner.

  35. HA! 55 years? Hessian training, indeed. (“You vill learn dis und you vill enjoy it!”) Well, I am happy I provided you the Jack Homer opportunity. Perhaps I made your day? 🙂 Damn! It is cold under my rock today . . . . .

  36. Judge:
    Ms. Greenhouse knows (or should know) that the Supreme Court voted 7-2 on the equal protection portion of Bush v. Gore. But for Ms. Greenhouse, and others like her, Bush v. Gore is, instead, the infamous 5-4 decision showing the High Court’s supposed predilection for politics over jurisprudence. Such a thing is intellectually dishonest and, for me, undercuts her arguments in this article.

  37. You would no doubt agree, then, that the 8th is also “packed,” since three-quarters of the justices were appointed by Republicans. Where you see “packing,” some of us see democracy at work.

  38. The issue is only unresolved because SC says it is. There is no conflict among the appellate circuits, nor would there likely be one any time soon. I think what RGK and others are saying is, this is not a shining example of judicial restraint, nor an example of primum non nocere.

  39. Sorry, but it does make sense to say that the tax credits go only to state exchanges. It makes perfectly fine sense.

    What it really comes down to is, do we decide what outcome we want and then invent our theory of statutory interpretation, or do we just let the words and sentences fall where they may, as long as they are a rational choice (vs or preferred choice).

    There are plenty of people who voted on the statute who could have believed it meant no tax credits for federal exchanges. It is really disturbing that a lot of people seen to say the actual words don’t matter and their reasonable reliance on the actual words doesn’t matter, all that matters is what we politically prefer.

  40. And to repeat, I am not arguing that one sentence should be read in isolation. If it truly is one sentence in isolation, I agree that is a very different case. What I said was, if it is clear from the Act that Congress made distinctions and showed it knew how to make distinctions, the judiciary should honor those distinctions. I am not sure why people seem to be uncomfortable with that, but I guess we live in a world where lawyers’ political views are more important than their respect for the rule of law.

  41. Well, that’s not true. The issue is the subject of pending litigation in three circuits besides the Fourth. That makes the issue unresolved. We know how two of the three D.C. Circuit judges to weigh in view the issue. The district judge in the Tenth Circuit challenge also invalidated the IRS rule.

    I think what you’re saying is that, in your view, the challenge to the IRS view lacks substantial merit. What I’m saying is that, let’s assume you’re a Justice and you think the challenge has somewhere between a 40%-60% chance of persuading you as you understand it now.

    You may not think that’s a reasonable view. But assume with me that it is — as reflected by the divergent judicial votes. If you can’t make that assumption — if you’re assuming it’s not even reasonable for a judge to find merit in the challenge — then this isn’t an issue about the Supreme Court per se. But if you can make that assumption, why isn’t it reasonable for the Justices to bring prompt finality to this question, rather than letting it linger and build up huge reliance interests that may well prove to be mistaken?

  42. Toby, I have committed many sins but the method of interpretation I advance goes back to Aquinas and probably to Aristotle, and under the name of equity is part of both the cannon law and civil law traditions and with a little manipulation is a large part of common law tradition under the rubric of ambiguity. You are right as to the issue of whether this case fights or not is debatable, but Harry Edwards is very bright and I am dubious about the other two DC Cir judges, and was already a distinguished public law scholar 43 years ago when I started teaching so his views on deference under Chevron carry a weight that I can not assign to shg.

  43. Gov’t IP Lawyer,

    Good and fair point. Two responses: (1) hope springs eternal; (2) it is a matter of degree.

    I also agree with you that divided government in the political branches places pressure on the Court to resolve disputes caused by divided government. There is an alternative course, however. The Court could more often say (by selecting fewer cases for review): It is your mess, you fix it.

    All the best.


  44. pvine,

    Thanks for making this point. I had no considered it, as you suggest. Now, having considered it, I don’t think it matters much. There are a lot of issue with the ACA, but the question of when and whether to take them up at the Court is a matter of first principles. Even if this case involves more than statutory construction, I remain convinced that the Court was wrong to jump the gun.

    All the best.


    PS Anytime you have an agency with the power to issue regulations implementing a federal statute, there are potential separation of power issues. I don’t see this case as particularly unique.

  45. Publius,

    It is a matter of timing in my view. Why wouldn’t a rational Justice want the views of the en banc D.C. Circuit first? After all, the D.C. Circuit was on the eve of hearing the case, so it wasn’t as if the Justices would have had to wait long.

    All the best.


  46. repenting lawyer,

    Edwards, as a former professor at Michigan (if I remember correctly), is certainly very bright. But there are times when he is far too sure of himself.

    All the best.


  47. Judge, Being far too sure is an occupational hazard of law profs, Michigan is right, Federal Judges, Bloggers, and their followers. I was pretending to humility on ad law since it has been a while since I taught it.

  48. Publius: What you say makes sense to this common lawyer, and, except for your ID here, you did NOT have to use “Latin” to explain it.

  49. You are correct, RGK. “Anytime you have an agency with the power to issue regulations implementing a federal statute, there are potential separation of power issue.” But this this case is “particularly unique” for a number of reasons.

    First, there is a serious threshold issue whether the IRS had the power to issue a regulation that interpreted section 36B. Or, in the words of Chief Justice’s dissent in City of Arlington, whether Congress specifically delegated to the IRS the authority to determine the particular question of whether federal tax subsidies are available to people who sign up for their insurance on an exchange established by the federal government. This is the so-called Chevron Step Zero issue that CJ Roberts believes is critical to ensuring separation of power between the Branches. In King, I don’t believe the Court should get past Step Zero. And that ends the inquiry.

    Second, if the Court does move on to Chevron Step One, given the crystal clear language used by Congress (to wit, “Exchanges established by the State”), there is an open question as to whether or not the required “ambiguity” exists to move on to Step Three. Specifically, if the question of Step One “ambiguity” is to be determined based solely upon the particular language that the agency sought to interpret by its regulation, than there is absolutely no “ambiguity” (regarding the meaning of “Exchanges established by the State”) and, under the separation of power first principle (which is the constitutional foundation of Chevron itself), no deference is accorded the agency’s interpretation. And the Court will engage in de novo interpretation of the statute (using textualisim or purpose-focused method, as the case may be) But, if the Step One determination of “ambiguity” is (like statutory construction) to be determined by looking at the “whole” statute, not just the particular provision that is the subject of the agency’s regulation, than, depending upon that language, it might be permissible (i.e., not violative of separation of power) to go to Step Three and defer to any reasonable agency regulation.

    To my knowledge, the Court has not yet decided whether there is a Chevron Step Zero (although Roberts (and Kennedy and Alito) believes there is based upon their dissent in City of Arlington). The Court has also not decided upon the scope of any such requirement. For example, how specific does a congressional delegation (to an agency) have to be in order to get passed Step Zero? The Court has also not decided how “ambiguity” is determined at Step One.

    Thus, there are significant constitutional issues raised by the King case that make the case “particularly unique.” And, let’s not forget the monumental impact upon people’s lives that the interpretation of “Exchanges established by the State” will have. That impact makes it particularly important that the constitutional issue (of which branch of government has the power to interpret the critical phrase) be resolved expeditiously by the only Branch that is empowered by the Constitution to do so.

    I am sure that I have still not convinced you that the grant was proper. But what the h!@#, I tried.

    Be well.

  50. pvine,

    Your arguments are very persuasive. But, you are correct. I continue to believe the Court jumped the gun. All the best.


  51. Whaaaaat???

    We have the most activist SCOTUS this country has ever seen, and you are calling the filling of three vacant seats on the DC Circuit “packing the court”???

  52. I believe a Justice could reasonably think:

    (1) “Hey, this appears to be at least a serious argument. I’m not sure if it will or will not ultimately persuade me. But two respected D.C. Circuit judges were persuaded, as well as a district judge in Oklahoma.”

    (2) “When I try to map out the possible universes that could come to exist as time goes on, there is a significant probability of one that should be pretty concerning. It’s very possible that a circuit split would develop, either because the D.C. Circuit en banc reaches the same result or because the Tenth or Eighth Circuit does. This is all prediction, so we don’t know. But I think there’s at least a 50% chance of that happening.”

    (3) “Since there’s a real possibility of a circuit split developing, let me try to predict the consequences of just waiting to see if that happens. If those consequences are not tremendous, then I’d be inclined to just follow the usual course and wait for a circuit split.”

    (4) “The consequences of waiting are pretty serious here. If the IRS rule is in fact invalid, we’re talking billions of dollars being spent per month, potentially without any legal authority. We’re also talking about employers laying off people and cutting hours to avoid the employer ‘mandate’ penalty. On the other hand, if the IRS rule is valid, I worry that this pending litigation — as least as reported fuzzily through the news — may well discourage people from signing up for insurance based on premiums they would ultimately be determined to be entitled to.”

    So that gets to your question: why not wait for the D.C. Circuit to rule en banc?

    I’d first note that the D.C. Circuit still could have chosen to rule en banc, and the Supreme Court would be able to consider its view before issuing its own decision likely in the spring or summer of 2015.

    I think the answer to your question is that, regardless of whether the en banc D.C. Circuit affirmed or reversed, it would not significantly change the calculus of the probability in number (2) above, especially given the likelihood of a split decision. There would still be a significant chance of a split developing.

    That confusion is probably also affected by a Justice’s view that the challenge is at least a serious one with a decent probability of persuading that Justice.

    I suppose I don’t see those as inevitably political views. Sure, the Justices could have turned down the chance to review the issue now. But then they’d probably have to wait until next Term to review it. And I think there is a very reasonably way of looking at the dynamic and concluding that it would not be appropriate to let reliance interests build up — i.e., that the negative consequences of delaying a final resolution (either by the Supreme Court deciding it one way or the other or by all circuit courts in fact upholding the rule, which appeared at least significantly unlikely) counseled in favor of settling this issue of national profile.

    In other words, that the nation deserves this issue to be settled sooner, and decisively, rather than letting it be settled — only perhaps settled — by waiting at least another year, given that this waiting is at least significantly unlikely not to settle the issue at all and yet build up serious and in many cases irreversible reliance decisions and disbursements.

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