More on King v. Burwell

June 25, 2015

Well, well, well! A fine day it’s been for Americans, what with the ruling in King v. Burwell, No. 14-114. (Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., No. 13-1371, the important housing/disparate impact case, also provided plenty to cheer about. Because its issues are more complicated, I’m sticking the King and the Affordable Care Act for now.)

At lunch today my old Wingnut friend started on a rant about Obamacare being forced through Congress with no opportunities for R input. I bit for a moment, and then a sense of calm passed over me and I uttered these words: “What the f*ck am I arguing about? Your side lost.” By the by, for the real skinny on R involvement, read Max Baucus to Gang of Six: ‘Time is running out’ from Politico on September 9, 2009. Three senators from each party tried to put together a deal. Nothing happened for many months, and the Ds had to go it alone in the end, for the Rs were for nothing and against everything.

One big and interesting aspect of today’s opinion involves Chevron USA v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The case stands for the proposition that, if a statute is ambiguous, the Court will give substantial deference to a government agency’s interpretation. Statutes are ambiguous in many cases, even when they are well-drafted, as there is only so much which can be anticipated. Agencies deal with these statutes all day long, so it makes sense to give deference to their interpretations.

Elections have consequences, you may have heard, and one of those consequences is that agency interpretations change. In King the government was relying on an Internal Revenue Service interpretation which validated subsidies for eligible individuals in every state. And the lower courts which agreed with the government did so in reliance on the Chevron Doctrine.

Did the majority rely on the Chevron Doctrine? No. Chief Justice Roberts devoted about one page of his 20+ page opinion to Chevron, concluding that “[t]his is not a case for the IRS.” And why is this important? My Wingnut friend and his fellow travelers believe, truly, that the soon-to-be eight years in the wilderness will come to a close, officially, on January 20, 2017. And if that happens? A Winger as IRS Commissioner will have no power to change any interpretation of the law as it relates to subsidies.

There was lots of good commentary on the King decision, especially in the New York Times. Here’s an editorial from the Editorial Board,  Paul Krugman’s Hooray for Obamacare, Linda Greenhouse’s The Roberts Court’s Reality Check, and The Supreme Court Decides: A Conversation, a delightful exchange between Emily Bazelon and Ross Douthat.

I hope everyone who’s reading this post is mature enough to know our government has functioned better than it does now. The three branches all have issues, but I doubt whether anyone will argue with the proposition that Congress is a laggard, and has been despite D and R control, and with Ds and Rs in the White House.

King v. Burwell does not reflect an optimal outcome, for the U.S. Supreme Court should not be, in a perfect world, the “Congress’s editor.” Still, our world is as far from perfect as I can ever remember it, and I’ve been a conscious, sentient, observing person for about 50 years. So I’m delighted to know that two-thirds of the U.S. Supreme Court—including a Chief Justice not predisposed to look with favor on government-centered programs—figured out how not to destroy a not perfect but functioning system for making sure Americans can access health care. Anytime you’re in town, Mr. Chief Justice, the drinks and a fine dinner are on me!

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