Deciding King v. Burwell

Herein of the Proverbial Rose by any Other Name

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Posted July 8, 2015

Over the past ten years, Chief Justice John G. Roberts, Jr. has been a consistent, cautious conservative in construing and applying the Constitution. His dissent in Obergefell v. Hodges, decided June 26, 2015, is only the latest in a long, largely unbroken line.

The Chief has also established an admirable record as a judicial craftsman when it comes to the many non-constitutional cases to come before the Supreme Court. It is in this regard that on Thursday, June 25, 2015, the craftsman was at his best.

John Roberts also has a twinkle in his eye. He takes a light jab at the Congress, quoting an old Felix Frankfurter article on statutory construction, describing a cartoon "in which a senator tells his colleagues 'I admit this new bill is too complicated to understand. We'll just have to pass it to find out what it means'." 1 And by the time you reach the bottom of page 17 of the slip opinion in King v. Burwell, all you can think of is what you see whenever you see Roberts live in person or on television, that pleasant and slightly impish smile.

There Roberts lays last the last plank in the legislative fact platform supporting the best meaning that can be divined for the pertinent parts of the Patient Protection and Affordable Care Act ("ACA"). A quote from Justice Scalia's three years ago dissent in National Federation of Independent Business, the first Obamacare case, viz., "Without the federal subsidies…the exchanges would not operate as Congress intended and may not operate at all."2

You just know the John Roberts who hurls that zinger has well in mind Hamlet's quip, of one being "hoist on his own petard." 3

By and large, the Chief Justice's majority opinion in King is straight down the fairway statutory construction, the conventional canons carefully applied. King is so plain vanilla that it would be decided the same way in almost every State. This includes our Mississippi, given its accepted canons of construction which long predate the familiar summary set out in 1952.4

But this is getting ahead of the story.

Thursday, June 25, 2015

By mid-morning on June 25, 2015, I'd heard that the Supreme Court had decided King v. Burwell, rejecting a textual attack on the ACA by a six to three vote.

At noon I sampled the news channels, listing to pundits and politicians hold forth, pro and con. I followed the Internet traffic off and on the rest of the day, and back to television reports when I got home from work that afternoon.

Most striking, I took in about an hour of Fox News as one curmudgeon after another blasted Chief Justice John Roberts for betrayal, treason and worse.

Then, in the quiet of the next morning, I read and reflected on the 21 page slip opinion that had been authored by the Chief Justice. Zero commonality between what the pundits and curmudgeons were commenting, arguing and raving about, and what King actually says.

Had Charles Krauthammer read the opinion before he started telling us that Republican Presidents need to be more careful about who they appoint to the Supreme Court?

Had I printed a hard copy of the right case?

Yes, the first page of the slip opinion read KING et al. v. BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, et al.; No. 14-114. Argued March 4, 2015 — Decided June 25, 2015.

I had the right case. I read it again.

Garden Variety Construction of a Complex and at Times Inartfully Drafted Statute

Chief Justice Roberts' opinion for the six Justice majority is Ned and the First Primmer, statutory construction. His ground rules and approach are practiced everywhere, with little or no controversy or exception taken.

To be sure, King construes a very complex statute. The analysis is meticulous, carefully crafted, much more so than in most statutory construction cases. It is attention-to-detail tough sledding for the uninitiated. In any other case, most lawyers would find it boring.

Imagine that King concerned a complex statute concerning farm subsidies, estate tax restructuring, or whatever low profile matter, and key parts of the text were awkward, confusingly worded. Imagine that the SCOTUS engaged the same canons of construction used in King and upheld this hypothetical inartful act of Congress.

There would be no media coverage, past a listing of the decision. Few would know or care beyond the parties to the particular case.

For reasons historians will ruminate about and discuss for decades to come, the ACA is not just another of the many complex acts of Congress that have been confusingly worded, inartfully drafted, and then enacted.

Obamacare Rests on a Three Legged Stool

Chief Justice Roberts matter-of-factly explains the three legged healthcare reform stool upon which the ACA rests. He identifies each leg and explains it.

"Guaranteed issue." Insurers are barred "from denying coverage to any person because of his health."

"Community rating." Insurers are barred "from charging a person higher premiums for the same reason."

"Tax credits." All persons are required "to buy insurance or pay a penalty," with "tax credits" to make personal health insurance affordable by lower income people.

"These three reforms are closely intertwined." 5

Obamacare is Grounded in Legislative Experience in the States

King gives a nice summary of twenty years of health care insurance reform efforts in the States. Different States tried differing strategies. Only one seemed to work.

Learning from other States, Massachusetts adopted a three prong reform: "insurance market regulation, a coverage mandate, and tax credits." 6 And "reduced the uninsured rate in Massachusetts to 2.6 percent, by far the lowest in the Nation." 7 The ACA "adopts a version of the three key reforms that made the Massachusetts system successful." 8 One recalls those twin towers, Holmes and Brandeis, on the great value of the States' prerogative to experiment, viz., that we may all have the benefit of "social experiments that an important part of the community desires [made] in the insulated chambers afforded by the several states, … " 9

"It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." 10

And so the Congress enacted the ACA, modeled after the three legged stool built and practiced in the home state of Holmes and Brandeis.

The Health Benefit Exchanges

The ACA requires an American Health Benefit Exchange for each State.11 If a State chooses not to establish an Exchange, the Secretary of Health and Human Services "shall…establish and operate such Exchange within the State. § 18041(c)(1) (emphasis added)."

Plaintiffs in King said the words "an Exchange established by the State," now codified in Section 36B of the Internal Revenue Code, do not include Exchanges established and operated by HHS within a State that has elected not to establish its own exchange.

Everyone agree that Plaintiffs' view — were it accepted — would have devastating adverse effects on any hope that the ACA over time might achieve its goals.12

In States with HHS operated Exchanges, this construction would have eliminated lower income persons from those eligible for the tax credits designed to make sure they never have to spend more than eight per cent of their taxable income for individual health insurance.13 For a variety of political and practical reasons, thirty-four States have not established their own Exchange. Rather, these State have allowed HHS "to establish and operate such Exchange within the State."

The Yawning Begins; Ambiguity Vel Non

Like all other judges, state and federal, the Chief Justice starts by studying the statutory text at issue to see if it is ambiguous. On its face and isolated, "Exchange established by the State" is pretty plain. It excludes the States who have not established their own Exchanges. But you can't stop there.

There is an important nuance to this starting point. "But oftentimes, the 'meaning — or ambiguity — of certain words or phrases may only become evident when placed in context." 14 Again, a settled and heretofore uncontroversial approach to statutory construction.15

In Part II. A. of his King opinion, the Chief Justice meticulously applies the settled standards to the ACA text. The discussion is as boring as it is elementary, e.g., a citation to Black's Law Dictionary for the meaning of "such." 16

In the end, interpreting "such Exchange" to include both State operated and Federal HHS operated Exchanges "fits best with the statutory context." 17

"The upshot of all of this is that the phrase "an Exchange established by the State under [42 U.S.C. §18031] is properly viewed as ambiguous." 18

After several readings, I find this discussion and conclusion persuasive. Not that there is ever speed limit precision in any inquiry into whether an inartfully drafted statute is ambiguous enough. Or what to do if it is.

More Yawns

How next to proceed is similarly settled and familiar. "Our duty … is 'to construe statutes, not isolated provisions.'" 19 "A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme." 20
A meaning that may seem "plain 'when viewed in isolation,' … [may] turn[] out to be 'untenable in light of [the statute] as a whole." 21 "A fair reading of legislation demands a fair understanding of the legislative plan." 22 Nothing out of the ordinary here.

Mississippi's version of these common sense premises is that the court should look to "the statute as a whole and … the language used therein." 23 The "statute should be given a reading 'most coherent in principle, given the entire statutory scheme and the other valid rules in the field.'" 24

King cites another sensible nuance to the proper approach to finding meaning in the context of ambiguity, viz., where "only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law." 25 "We cannot interpret federal statutes to negate their own stated purposes." 26 Surely this is unexceptionable.

In the end, the Chief Justice has left no doubt of his pedantic purpose, viz., to discern from text and history what Congress was trying to do when it enacted the ACA, the reasons why Congress so enacted, and whether Congress could reasonably have "meant" the results that would most likely follow, if Plaintiffs prevailed.27

"It is implausible that Congress meant the Act to operate in this manner," 28 after setting out the effects of Plaintiffs' position. In the end, "Section 36B can fairly be read consistent with what we see as Congress's plan, and that is the reading we adopt." 29

Mississippi Canons of Statutory Construction Point to the Same Result

Less than an hour on Lexis or Westlaw should reassure Mississippians of King's legality. If anything, canons of statutory construction in our state are more expansive than the federal canons.

For one, "we must read statutes sensibly even if it means correcting the statute's literal language." 30 It is settled Mississippi law that, "[i]f there exists ambiguity in the meaning of a statute, a court must uphold the legislature's intent31 even though the letter of the statute is violated." 32

For another, the Supreme Court of Mississippi long ago admonished that "In construing a statute of doubtful meaning, the consequences or any particular construction should be considered, whether they be good or bad." 33 This constructional principle was still being recognized as recently as the late 1990s.34

The point has been put in other words beginning in the 1990s, viz., "When construing a statute, all possible repercussions and consequences of the construction must be considered." 35 This is just common horse sense.

Plaintiffs argued that the view King adopted would violate the canon against surplusage, i.e., declaring the words "established by the State" unnecessary. The Chief Justice answered that the "canon against surplusage is not an absolute rule," and explained why the canon was no impediment to King.36 Our state takes the same view of the surplusage canon.37

Where Avoidable, No Statute Should Be Construed to Defeat Its Purpose

In the end, King declares that "Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we should interpret the Act in a way that is consistent with the former, and avoids the latter." 38

More than sixty years ago, the Supreme Court of Mississippi said essentially the same thing. "[I]f susceptible of more than one construction, … a statute] must be given that which will best effect its purpose, rather than one which would defeat it, … " 39 As recently as 2010, the Court reiterated that powerful policy preference, and enforced it with effect.40

The Chief Justice has a nice finish in King. "In a democracy, the power to make the law resides with those chosen by the people … [I]n every case we must respect the role of the Legislature, and take care not to undo what it has done." 41

Plain vanilla is still the best ice cream flavor.

Chief Justice Roberts, A Postscript and an Object Lesson

On Friday, June 27, 2015, the SCOTUS handed down Obergefell v. Hodges, the same- sex marriage case. Nothing in Chief Justice Roberts' dissenting opinion in Obergefell should have surprised anyone. Nor should his opinion in King have been a surprise. Nothing in Roberts' Obergefell dissent is inconsistent with his majority opinion in King.

It would strike me as plausible that Roberts may have exercised his prerogative as Chief Justice to keep King for himself, because he knew an affirmance could be written within the traditional statutory construction template. He could head off any flourishes that other Justices might use that could plant seeds for a right to healthcare, or a less restrained regulatory state.

He could write an opinion in King that five years from now the overwhelming majority of American lawyers and knowledgeable non-lawyers could read and recall, "that's nothing new."

To my mind, the Equal Protection Clause is solid grounding for Obergefell. I was surprised and a bit dubitante that the majority claimed double support in the Due Process Clause.

More practicably, there are cautionary tales in our constitutional history where many are known to be passionate. Capital punishment was slowly dying a natural death until 1972 when Furman v. Georgia, five to four, held it unconstitutional as practiced. Who can doubt that hundreds (if not thousands) more men have been executed in the last forty years than if Furman had been decided as Gregg v. Georgia was in 1976?

There are enough more such experiences in our recent past that I am reluctant to condemn the Roberts approach in Obergefell, though I think it legally incorrect (on Equal Protection grounds).

After all, a kid will always fight harder for the cookies or candy his mother says he can't have.

John G. Roberts, Jr., has been consistently conservative in the almost ten years he has served as Chief Justice. He was just as conservative on June 26, 2015 as he would be the next day. It is a sad commentary on the quality of public discourse that so few seem to see this.42 Or that, recalling Roberts' famous umpire analogy at his Senate confirmation hearing, an umpire who is consistent is usually one ball players can live with.


  1. King v. Burwell, No. 14-114, 576 U.S. --- (2015), slip op. at 15 (U.S. June 25, 2015).
  2. National Federation of Independent Business v.Sebelius, 567 U.S. ––––, ––––, 132 S.Ct. 2566, 2674, 183 L.Ed.2d 450 (2012) (Scalia, Kennedy, Thomas and Alito, JJ., dissenting)
  3. Shakespeare, Hamlet, Act III, Scene 4, line 207.
  4. Thornhill v. Ford, 56 So.2d 23, 30 (Miss. 1952).
  5. King, slip op. at 4 and 16.
  6. Id. at 3.
  7. Id.
  8. Id. at 4.
  9. Truax v. Corrigan, 257 U. S. 312, 344 (1921) (Holmes, J., dissenting).
  10. New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting).
  11. 42 U.S.C. § 18031(b)(1).
  12. King, slip op. at 15-18.
  13. Id. at 18.
  14. Id. at 9.
  15. See, e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-133 (2000).
  16. King, slip op. at 10.
  17. Id. at 12.
  18. Id.
  19. Id. at 9; Graham County Soil and Water Conservation District v. United States ex rel. Wilson, 559 U.S. 280, 290 (2010).
  20. King, slip op. at 15; United Sav. Assn. Of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988).
  21. King, slip op. at 20; Department of Revenue of Ore. v. ACF Industries, Inc., 510 U.S. 332, 343 (1994).
  22. King, slip op. at 21.
  23. Bailey v. Al-Mefty, 807 So.2d 1203, 1206 (¶11) (Miss. 2001).
  24. Estate of Davis v. Davis, 706 So.2d 244, 247 (¶12) (Miss. 1998). This idea is present in Thornhill v. Ford, supra, only in more turgid prose, vintage 1952.
  25. King, slip op. at 15; United Sav. Assn. Of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 U. S. 365, 371 (1988).
  26. King, slip op. at 15; New York State Dept. Of Social Servs. v. Dublino, 413 U.S. 405, 419-420 (1973).
  27. King, slip op. at 15, 16-17.
  28. Id. at 17.
  29. Id. at 21.
  30. Sheppard v. Mississippi State Highway Patrol, 693 So.2d 1326, 1330 (Miss. 1997).
  31. Yes, I still gag at the inapt metaphor "legislative intent" unless it is made clear that this connotes an objective standard for discerning the meaning of the statutory text. In a prior life, I often said "We do not inquire what the legislature meant; we ask only what the statute means," Stuart's, Inc. v. Brown, 543 So.2d 649, 651 (Miss. 1989), quoting Holmes. Occasionally others followed. See, e.g., Rivers v. Board of Trustees, Etc., 876 So.2d 1043, 1053 (¶41) (Miss. Ct. App. 2004) (Griffis, J., dissenting).
  32. Allred v. Webb, 641 So.2d 1218, 1222 (Miss. 1994), citing Hendrix v. Foote, 38 So. 2d 111, 117 (Miss. 1948).
  33. L. H. Conrad Furniture Co. v. Mississippi State Tax Comm'n, 133 So. 652, 656 (Miss. 1931).
  34. Board of Law Enforcement Officer Standards and Training v. Voyles, 732 So.2d 216, 221 (¶16) (Miss. 1999); Pegram v. Bailey, 708 So.2d 1307, 1314 (Miss. 1997).
  35. Chandler v. City of Jackson Civil Service Commission, 687 So.2d 142, 144-145 (Miss. 1997), citing precedent back to Quitman County v. Turner, 18 So.2d 122, 126 (Miss. 1944).
  36. King, slip op. at 14.
  37. Sheppard v. Mississippi State Highway Patrol, 693 So.2d 1326, 1330 (Miss. 1997).
  38. King, slip op. at 21.
  39. Thornhill v. Ford, 56 So.2d 23, 30 (Miss. 1952).
  40. Delta Regional Medical Center v. Green, 43 So.3d 1099, 1103 (¶13) (Miss. 2010).
  41. King, slip op. at 21.
  42. The New York Times comes close with Adam Liptak's "Angering Conservatives and Liberals, Chief Justice Defends Steady Restraint," The New York Times, page A13 (June 27, 2015) and Jeffrey Rosen's, "John Roberts, the Umpire in Chief," The New York Times Sunday Review, page 4 (June 28, 2015).