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The United States recently filed its brief in King v. Burwell. In this post, I will highlight a few keys aspects of the argument, and analyze some of the new, or refined arguments the government made.

First, the government repeats at several points that the petitioner’s reading of the statute would wreak “havoc” on the law, and health insurance markets.

The denial of tax credits and the resulting loss of customers would thus have disastrous conse- quences for the insurance markets in the affected States, which would remain subject to the Act’s non- discrimination rules but without the safeguards Con- gress deemed essential to preventing death spirals.

…

“wholly apart from the havoc it would wreak on the Act’s structure and design” …

Accordingly, petitioners’ reading “would throw a debilitating wrench into the Act’s internal economic machinery.” Pet. App. 29a.

I expect the government to make this point much more forcefully during oral arguments.

Second, the government argues that its reading is consistent with principles of cooperative federalism.

Second, the availability of tax credits in every State is essential to the Act’s model of cooperative federal- ism. Petitioners’ reading would transform Congress’s promise of “State flexibility,” 42 U.S.C. 18041, into a threat that a State would suffer severe consequences unless it established its own Exchange. To accept petitioners’ account, moreover, the Court would have to accept that Congress adopted that scheme not in a provision giving States clear notice of the consequenc- es of their choice, but instead by hiding it in isolated phrases in the formula for calculating an individual’s tax credit. The Act should be interpreted to avoid the disrespect for State sovereignty inherent in petition- ers’ reading. …

Thus, like many other cooperative-federalism statutes, the Act permits state implementation of federal require- ments in the first instance, but directs the federal government to step into a State’s shoes if the State fails to act. …

The scheme peti- tioners posit bears no relation to the normal operation of cooperative-federalism programs. …

It would display considerable disrespect for state sovereignty for Congress to hide the ramifi- cations of a State’s election in subclauses setting forth the technical formula for calculating the amount of an eligible individual’s tax credit. …

And it would have been perverse for Senators concerned about federalism to insist on pressuring States to participate in the im- plementation of a federal statute.

Third, the government has fashioned something of a federalism canon argument–in short, we should presume that Congress did not intend to impose such a stark condition on states because that would not respect the states’s sovereign interests.

“Among the background principles of construction that [the Court’s] cases have recognized are those grounded in the relationship between the Federal Government and the States under our Constitution.” Bond v. United States, 134 S. Ct. 2077, 2088 (2014). Those principles bear directly on the interpretive question in this case. Rather than assuming that Congress subjected States (with only the most ob- scure notice) to the onerous regime that would be required by petitioners’ interpretation of the Act, cf. NFIB v. Sebelius, 132 S. Ct. 2566, 2601-2602 (2012) (opinion of Roberts, C.J.); Gregory v. Ashcroft, 501 U.S. 452, 460-461 (1991); Pennhurst, 451 U.S. at 17, the Court should interpret the Act in a manner that advances the respect for state sovereignty reflected in its express promise of “State flexibility” and its coop- erative federalism design. …

In other words, giving the states a choice between establishing an exchange and crippling their health insurance markets would have violated principles of federalism, so Congress should not be understood to have made such a choice.

It is implausible that Congress would have risked the collapse of the statutory scheme in non-electing States—and the denial of affordable coverage to mil- lions of Americans—as a means to ensure that the Act’s express offer of “State flexibility” would never be accepted.

But what about the Medicaid expansion, you ask? As I, and others have argued, this is precisely how the Medicaid expansion works–force states to expand Medicaid or risk losing all funding. To this, the government replies that Medicaid is a conditional-spending program which imposes conditions on states. The tax credits are meant for individuals, not states.

With the Medicaid expansion, there was no fallback, and states that did not expand would lose ALL of their funding. This is why 7 Justices found the expansion unconstitutional.

The ACA followed that model in its provisions addressing Medicaid, a longstanding conditional- spending program. To provide coverage for low- income individuals—including those with incomes too low to qualify for tax credits—the Act provided that, as a condition of continued receipt of federal Medicaid funds, States were required to expand Medicaid eligi- bility substantially. Id. at 2581-2582. Congress ex- pected that every State would continue to participate in Medicaid, and it thus provided no alternative in the event that a State declined to do so. Id. at 2665 (Scal- ia, Kennedy, Thomas, & Alito, JJ., dissenting).

In contrast, the SG argues, Congress took a different approach for the tax credits.

Congress took an entirely different approach to Exchanges and tax credits. The Act does offer grants to provide “[a]ssistance to States” in establishing Exchanges. 42 U.S.C. 18031(a). But unlike those conditional grants, the “premium assistance” made available by Section 36B is a federal tax credit award- ed to individual federal taxpayers. The credits are also part of an integrated set of national reforms that apply whether or not a State elects to establish its own Exchange. Section 36B thus bears no resemblance to the conditional-spending programs on which petitioners rely.

Fourth, the governments calls the petitioner’s position that Congress intended to threaten states “baseless,” “strains credulity,” and “lacks credibility.”

Instead, they reverse-engineer a description of the Act’s design and history to fit their misreading of Section 36B. Petitioners insist that Congress intentionally threatened to impose a dysfunctional regime on the States in order to pres- sure them to establish Exchanges for themselves, and that Congress assumed that every State would com- ply. That notion is baseless. …

It strains credulity to insist, as petitioners must, that Congress limited tax credits to States that estab- lish Exchanges for themselves by including the modi- fier “established by the State under [Section 18031]” in two subclauses of Section 36B, yet omitted that purportedly crucial limiting language from all of the Act’s myriad other references to the credits and sub- sidies available on Exchanges. …

Petitioners’ rendering of the Act lacks credibility.

Petitioners rely heavily (Br. 4-5, 42-43) on statements made by Jonathan Gruber, an economist, consultant, and supporter of the Act. But those statements were made two years after the Act was passed, and Gruber has clarified that they were taken out of con- text. Jonathan Gruber, Written Testimony Before the House Comm. on Oversight & Gov’t Reform 2 (Dec. 9, 2014). Petitioners also cite (Br. 41) an earlier academic paper noting that Congress could limit tax credits to States that set up Exchanges. Timothy S. Jost, Health Insurance Exchanges: Legal Issues 7 (2009). But there is no indication any Member of Congress saw that paper, and in any event the Act actually corresponds to a different option described in the same paper: It “invite[s] state participation in a federal program, and provide[s] a federal fallback program to administer exchanges in states that refuse[ ] to establish complying exchanges.” Ibid.

Finally, there is a throw-away reference to the rule of law. The government argues that it would violate the rule of law to invalidate the IRS Rule, as it fails to accord respect to the elected branches.

Petitioners invoke (Br. 17) “judicial fidelity to the rule of law and well-established interpretive princi- ples.” But it is petitioners, not the government, who seek to rewrite the Act. Determining the meaning of a statute duly enacted by Congress, particularly a statute as consequential as this one, by focusing on isolated phrases divorced from textual cross- references, definitions, and context—and with no regard for the statute’s structure and design—does not respect the rule of law. It subverts the rule of law by denying appropriate respect to the choices Con- gress has made in the exercise of its democratically accountable authority.

“Democratically accountable authority” is a code word for judicial restraint to the elected branches. In the brief I submitted along with the Cato Institute, we take a very different understanding of the rule of law–something Obamacare’s implementation does wanton (not wonton) violence to.

In Holt v. Hobbs, the Court made abundantly clear that RFRA and RLUIPA should be treated exactly the same. Justice Alito referred to the laws as “sister statute[s]” designed to protect religious liberties beyond those protected by the First Amendment.

Congress enacted RLUIPA and its sister statute, the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. §2000bb et seq., “in order to provide very broad protection for religious liberty.” Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___, ___ (2014) (slip op., at 4). …. Following our decision in Smith, Congress enacted RFRA in order to provide greater protection for religious exercise than is available under the First Amendment. See Hobby Lobby, supra, at ___ – ___ (slip op., at 5–6).

 

One of the lingering questions teed up by Justice Scalia’s dissent in Lawrence v. Texas, and left unresolved, is whether the state has a compelling interest in banning adult incest, where all parties are of age and consent to the relationship. This question has come to the fore after a jarring report that a daughter is in a sexual relationship with her father (the mother does not know). The daughter acknowledges that they would not get legally married, but they seem intent on continuing to have sexual relations. And, the daughter indicated that she wants to move to New Jersey where adult incest is legal (it seems the Garden State forgot to pass that bill). In response, New Jersey legislatures want to pass a bill criminalizing adult incest.

The bill would make it illegal to marry or commit an act of sexual penetration with a blood relative, including half-siblings. Violators could face three to five years in prison and a fine of up to $15,000.

Angelini, a Republican from Monmouth County, said adult incestuous relationships “violate our acceptable moral standards” and often involve sexual abuse that is blurred by the “consensual” loophole.

Would such a bill be constitutional? Under Lawrence v. Texas and Windsor, I think the answer has to be no.

First, the father and daughter are both consenting adults who claim to love each other, and enjoy sexual relations with each other. Why should the state have any interest in their private lives. They aren’t even seeking any recognition of their relationship.

Second, as we learned in Windsor and its progeny, the state has no compelling interest in encouraging responsible procreation. That incestuous relationship may yield children with birth defects, under strict scrutiny, is not a sufficient reason to stop them from cohabitation. As the daughter points out in that article, the state allows people who carry dangerous recessive genes–such as Tay Sachs–to have sex and marry. Perhaps a blanket ban on incestuous relationships could serve as a prophylactic against passing on recessive genes. But if that were the case, testing the couples would seem far less invasive than criminalizing the ban. Although, the state would have no similar interest in banning same-sex incestuous relationships, because there is no possibility for offspring. The state’s strongest interest involves the risk of sexual abuse with incestuous relationships. But both parties are consenting adults, and are presumed competent to engage in many sexual relationships that may not be healthy. Criminalizing all aspects of sexual relationship between blood-relatives who consent would seem to be overbroad, under strict scrutiny, in the absence of compelling evidence that a blanket ban is justified.  Perhaps a background check for domestic violence must be performed before issuing such a license. (If you think this is absurd, let’s talk about licensing another constitutional right that appears right  below the First Amendment).

Third, we learned in Windsor that traditional notions of morality are grounded in animus, and do not provide a valid basis for infringing on personal relationships. The New Jersey legislator said as much: adult incestuous relationships “violate our acceptable moral standards.” That’s a per se violation of the principles of Romer.

Fourth, to the extent that we look abroad to international law to inform evolving standards of decency, experts in Switzerland and Germany have proposed decriminalizing adult incest. The German Ethics Counsel offered these thoughts:

But on Wednesday, the German Ethics Council recommended the section be repealed, arguing that the risk of disability in children is not enough to warrant the law and de-criminalising incest would not remove the huge social taboo around it.

The chairman of the council, Christiane Woopen, was among the 14 members voting in favour of repealing section 173, while nine people voted for the ban to continue and two abstained.

A statement released on Wednesday said: “Incest between siblings appears to be very rare in Western societies according to the available data but those affected describe how difficult their situation is in light of the threat of punishment.

“They feel their fundamental freedoms have been violated and are forced into secrecy or to deny their love.

“The Ethics Council has been told of cases where half-siblings did not grow up together and have only met in their adult lives.” …

“The majority of the German Ethics Council is of the opinion that it is not appropriate for a criminal law to preserve a social taboo,” it added.

“In the case of consensual incest among adult siblings, neither the fear of negative consequences for the family , nor the possibility of the birth of children from such incestuous relationships can justify a criminal prohibition.

“The fundamental right of adult siblings to sexual self-determination has more weight in such cases than the abstract protection of the family.

Although, the Germans only recommended eliminating the ban between siblings, not between parents and children. So maybe the daddy-daughter date is out of luck.

And if siblings are allowed to have sexual relationships, why shouldn’t they be able to receive a marriage license. Why should the government deny them a license if the couple asked for one? Granted, there is no social movement pushing for incestuous marriages, like there is for same-sex marriage. Further, to my knowledge, no other states are moving to eliminate bans on incest. So perhaps, in this sense, federalism counsels against uprooting incest laws.

If you couldn’t tell, this post was somewhat tongue in check. None of this is to suggest the Court should uphold the same-sex marriage ban. Rather, I write this to suggest that this is going to be a much harder opinion to write than people appreciate. There’s a big difference between a circuit court opinion which people will soon forget (even Judge Posner’s), and a Supreme Court decision that will affect all 50 states, invalidate dozens of state constitutional provisions, and live in perpetuity in the U.S. reports and case books. Whatever the majority opinion is will have to contend with these arguments. The Court ducked the question in Lawrence and Windsor, but if they reach the merits, they will have to explain why incest laws remain constitutional. Scalia’s dissent, at last, will have to be addressed.

From arguments in Texas Dept. of Housing and Community Affairs:

JUSTICE BREYER: Now, that’s a question. It didn’t sound like one, but it was one.

(Laughter.)

JUSTICE BREYER: So I’d like to hear what you say.

During oral arguments in Williams-Yulee v. Florida Bar, the attorney for the respondent favorably cited Buckley, McConnell, and Citizens United.

This did not sit well with Justice Sotomayor, who reminded the lawyer that those cases had dissents!

JUSTICE SOTOMAYOR: I ­­ I ­­ be careful with that line because there’s a number of Justices on the Court that dissented from that ­­

MR. RICHARD: I ­­–

JUSTICE SOTOMAYOR: — and Citizens United has brought that into question.

MR. RICHARD: I ­­ — I —  ­­

JUSTICE SOTOMAYOR: So assuming that’s not the argument, what’s the better response?

In the past, Justice Sotomayor has explained that when she is in dissent she “think[s] the majority [was] wrong.” Sotomayor also sparred with Alito over the value of stare decisis in Alleyne.

Justice Scalia shot back, and reminded the lawyer (and Sotomayor) that five votes a majority makes:

JUSTICE SCALIA: Well, you only need five votes, and there were five votes there.

(Laughter.)

The lawyer perhaps didn’t quite get Scalia’s comment, because he said he was trying to get Scalia’s vote “as well.”

JUSTICE SCALIA: Don’t be too intimidated.

MR. RICHARD: I’m getting to try to get your vote as well, Justice Scalia. I haven’t reached that point yet. But ­­ and I understand it’s a high mountain to climb, but ­­ but the point here that I’m trying to make is that this is an extremely minimal imposition of the candidate’s freedom of expression, if there’s any imposition at all.

I’m not a fan of lawyers mentioning that they are trying to get a specific Justice’s vote. I realize sometimes Justice will bait them–“tell me counselor, how I can rule in your favor”–but these kinds of gratuitous comments, and reference to a  “high mountain to climb” seem gauche.