The New York Times on the Origin of King v. Burwell

March 2nd, 2015

Adam Liptak generously quotes me on the origin of King v. Burwell:

Opponents of the subsidies say it is the text of the law that matters, not what individual lawmakers knew or believed.

“It is extremely doubtful that any senators read the entire bill at the time, and even more doubtful that all but a few senators were even aware of how the exchanges were structured,” said Josh Blackman, a law professor at South Texas College of Law who has filed a brief supporting the plaintiffs.

“When you have such a large bill, that changes so many aspects of our society, that no one bothered to read, discerning a single legislative intent is elusive,” he continued. “To this, the challengers reply that the text provides the best indication of what Congress meant — the majority voted on it.”

One point that has been weighing on my mind of late, is how sophisticated the arguments have become over the last two years. When the IRS rule was initially proposed, Treasury did almost no research. They declared federal exchanges to be equivalent to state exchanges, ipse dixit. Over the past two years, academics and government lawyers have put together a compelling case about why the government wins. But absolutely none of this was part of the “reasoned decisionmaking” when the rule was proposed, or adopted.

This reminds me (tragically) of the individual mandate. When it was crafted, it was framed as a regulation of commerce, and all the constitutional findings about the mandate cited the commerce clause. None cited the taxing power. However, as soon as the challenges were filed, the government quickly pivoted to the taxing power. And the rest is history.

There is something perverse about the government relying on rationales that were totally absent when the original action was taken. It is akin to the rational basis test, where the state can fabricate rationales after the fact to justify a regulation, even if that regulation was unknown. When the IRS regulation was issued, the explanation proffered amounted to lawlessness. Now, they have a legitimate textualist argument. This history is why, I argue in my brief with Cato, that the normal presumption of deference should not be applicable.

Anyway, that’s it for me for now. I’ll have a lot more to say after attending oral arguments.