To me, the most surprising moment of the oral argument in King v. Burwell came when Justice Alito raised the possibility of entering a stay if the Supreme Court were to rule against the government. Last November, I had dismissed the idea as a non-starter, so I was startled to see any justice, much less a conservative justice, take it seriously.
Yes, the Court in rare cases has entered stays to avoid serious disruption. But it last did so in 1982, when, in Northern Pipeline, the Court stayed its judgment to “afford Congress an opportunity” to fix a law that had just been declared unconstitutional. Since then, the Court has eschewed the power to tailor its judgments in this fashion; it smacks too much of lawmaking. Plus, staying King would mean that the IRS could keep dipping into the Treasury to pay out subsidies, raising constitutional concerns about unauthorized spending.
But Alito’s comment raises an intriguing possibility. What if the conservative majority on the Court were to rule against the government, even as a different majority entered a stay of that judgment through 2015? That majority might comprise Alito, some or all of the four liberals, and even Kennedy, who’s open to these sorts of exercises of judicial power.
I flagged this possibility last year, but I doubted that any conservative justice would bite. I still doubt it, Alito’s comment notwithstanding. Consider the deceptively simple question of how long a stay should be. Alito, for example, toyed with the idea of staying the judgment “until the end of this tax year.” Whether that’s the appropriate length of time depends on the purpose that a stay is meant to serve.
To be clear, a stay would be a welcome reprieve for the millions of people who stand to lose their coverage in the second half of 2015. But naked sympathy isn’t, without more, enough to justify a stay. A stay is supposed to preserve the status quo during the pendency of an ongoing process. Here, as in Northern Pipeline, the point of any stay would be to let the political process play out, both in Congress and the states.
But if the Court is pinning its hopes on Congress, I fear a stay until the end of 2015 (or even through 2016) won’t help. The Republican-controlled Congress has ruled out a clean fix. And Republicans have struggled without success to coalesce around a plan to replace the ACA. The odds that they could unite behind a replacement bill in six months are remote. There’s no chance the president would sign such a bill anyhow.
There’s been some talk that Congress could temporarily maintain the subsidies until after the presidential election, when a replacement bill might have some dim hope of getting signed into law. But Congress doesn’t need a six-month stay to pass a stopgap bill. It’s a simple piece of legislation. A Congress that can’t pass such a bill in July probably couldn’t pass it in December, either.
As for the states, a stay until the end of 2015 won’t do any good. As I’ve explained, it’ll take time for most states to overcome the serious practical, legal, and political challenges to establishing new exchanges. Once the Court rules at the end of June, however, the states have a scant four months to get their exchanges up and running by the start of open enrollment on November 1. Most states will need more time—probably well into 2016—to manage the transition. Staying King through the end of the year won’t much matter.
Which is why I’m skeptical of Alito’s suggestion. Staying King might sound like an attractive way to minimize the consequences of ruling against the government. But a stay would just push off the day of reckoning—not avoid it.