With the Supreme Court’s decision to hear King v. Burwell, now is as good a time as any to offer a reference guide to what I’ve written on the case. I’ve also got a forthcoming point-counterpoint debating two of the architects of the exchange litigation, Jonathan Adler and Michael Cannon. I’ll link to it as soon as I can.
My first post on the exchange litigation came in January, when I explained why I think 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.
When the challengers sought an expedited appeal, I offered thoughts on why a principled textualist ought to rule in the government’s favor. (The terrific Abbe Gluck makes a similar point in her recent post at Scotusblog.) I next asked why conservatives are so enthusiastic about the exchange litigation. The ACA isn’t going to totter even if they win, and in the meantime millions of people will be harmed.
In the run-up to the D.C. Circuit argument in Halbig, I did my first podcast with Jonathan Adler about the case. I also discussed a fascinating sideshow at the D.C. Circuit over the proper remedy if the government lost. When Halbig and King finally came down, I wrote two quick posts on the clashing circuit court decisions. Then Adler and I did another podcast.
After Halbig, I traded posts with Adler over some nitty-gritty questions of statutory interpretation. I first pushed back—hard—on the claim that the government’s position ignores the statute or is somehow lawless. After a riposte from Jonathan about the meaning of the “by the State” language, I explained that the phrase simply can’t bear the weight he would assign to it. I made the same point in an interview with Adrianna while she was at Vox.
Questions of what Congress really meant keep creeping into the case. In my next post, I drew on some statutory interpretation theory to show that what Congress meant its statute to accomplish matters to both textualists and purposivists. In the same vein, I noted in a separate post that poorly drafted language in statutory text isn’t especially unusual and that courts still have a duty to make the best sense of that text.
I next explained why Grubergate doesn’t much move me, and shouldn’t much move you. And I fielded a question from Austin over why we can sensibly criticize the Supreme Court for getting the law wrong, even if it has the final say about what the law is.
Just a few weeks back, I criticized the challengers for wrapping themselves in the mantle of liberty by claiming that they’re trying to protect people from the individual mandate. And in early October, I debated Jonathan Adler here at the University of Michigan; there’s even a video available, if you’re curious.
Finally, I encouraged the D.C. Circuit to take Halbig en banc and argued, in a subsequent post, that there was a serious risk that the Supreme Court would end up granting King. I wish I had been wrong about that, but I wasn’t.