Pruitt v. Burwell and A Congressional Fix

October 2nd, 2014

I have now had a chance to read the Oklahoma District Court’s decision in Pruitt v. Burwell. More or less, it follows the reasoning of Halbig, and rejected the reasoning of King (which it called the “legal fiction” interpretation).

As just noted, the court has the benefit of two recent opinions by courts of appeals, which reach opposite conclusions. In Halbig v. Burwell, 758 F.3d 390 (D.C.Cir.2014), the majority struck down the the IRS Rule. In King v. Burwell, 759 F.3d 358 (4 Cir.2014), the IRS Rule was upheld. (“Both opinions were issued on the same day. Neither addresses the other. ) For the reasons described below, this court finds the Halbig decision more persuasive

So there isn’t too much to add on the merits front. There are also curious citations to Judge Easterbrook’s foreword to the Scalia/Garner Book, as well as a blockquote to Richard Epstein’s post on Ricochet.

But what I found most interesting about the opinion came towards the very end. After the court invalidates the IRS rule, it suggests that if Congress doesn’t like how the statute it wrote is working out, it can change it:

This is a case of statutory interpretation. “The text is what it is, no matter which side benefits.” Bonnes v. United States, 759 F.3d 793, 798 (7 Cir.2014). Such a case (even if affirmed on the inevitable appeal) does not “gut” or “destroy” anything. On the contrary, the court is upholding the Act as written. Congress is free to amend the ACA to provide for tax credits in both state and federal exchanges, if that is the legislative will.

Halbig is indeed a statutory interpretation case. This entire dispute could be amended by an act of Congress one sentence long. It would say “strike ‘by the state’ from 26 U.S.C. §36B(c)(2)(A)(i).” That’s it. That would moot the entire litigation, give states the flexibility to create an exchange or not, and do what the supporters of the law wanted it to do.

But the chances of that happening are close to zero. There will be no effort to fix the law through the legislative channels. The Republicans in the House (and soon the Senate) have voted repeatedly to repeal the entire ACA. Efforts to amend it–even to do something that conservatives are seeking in court–will go nowhere fast. This apparent gridlock, in part, is why the President has turned to extra-legal executive efforts to rewrite the law.

So, in a sense, the district court’s offer to Congress is akin to what Richard Re has called The Doctrine of One Last Chance. Before the Court strikes down some law, they issue a narrow ruling, and give Congress a chance to fix it–knowing full well that Congress will not fix it. Then, with a clean conscience, the Court can invalidate the law in a future case. What’s different here is the court is invalidating the rule, and *then* telling the Congress to pass a new statute. This puts the cart before the horse, so to speak.