Corrective Justice, Reparations, and Race-Based Affirmative Action

I recently published a short essay (2500 words or so) regarding affirmative action with The Arkansas Journal of Social Change and Public Service, an online, student-run journal published at my law school. The article is available here. Comments are welcome, as always. Also, feel free to circulate as widely as you deem appropriate and in whatever ways are most convenient.

Brief Thoughts on Obergefell, the Same-Sex Marriage Case

I don’t have time right now for a comprehensive analysis like with the Obamacare case.  So here are some quick thoughts and I may follow up with more details at a later time.

1.  I agree with the result.  I think the Constitution does protect a right to same-sex marriage.  And I think the result in this case is the natural extension of existing precedent.  There were multiple analytical bases to get to this result, all of which I find persuasive.

2.  However, I think the issue is a close call.  Thus, a 5-4 result is both unsurprising and justified.  In my view, the majority is correct, but by a small margin.  The dissenters are on very firm ground in disagreeing with the result, and even firmer ground in raising concerns about Kennedy’s  interpretive methodology.

3.  Kennedy has become quite a master at the use of sweeping language.  Much of what he wrote is beautiful.  But beauty needs to be backed up with analytical rigor.  And in the latter department, Kennedy’s opinions is lacking.  Not like in Lawrence v. Texas (the 2003 sodomy case), but it is still too all-over-the place.  In addition, Kennedy appears to have finalized his rejection of the long-established framework for addressing due process and equal protection issues (at least in “family privacy” cases).  I wish he had been more explicit about the fact that he was doing so.  

4.  Roberts’s dissent is very solid.  He is a terrific writer.  And much of his analysis is excellent (though he does overstate the case in a number of places).

5.  As I said above, I do think the dissents make important points about the dangers of Kennedy’s sweeping language and the interpretive methodology it suggests.  However, I ultimately think their worries for democracy are somewhat misplaced.  The Court will never go as far as they fear, even with Kennedy’s broad rhetoric available as a tool.  Moreover, the result today is not as extreme as Roe, which remains at the outer boundary of “substantive due process”—the source of the constitutional right to privacy/liberty/autonomy.  But the dissenters’ concerns are certainly understandable.  An honest reading of Kennedy’s opinion could easily justify some pretty dramatic results.  Nonetheless, the better reading is a more circumscribed view of constitutional liberty.  In other words, Kennedy’s sweeping language must be read in the context of the history of “family privacy” cases—marriage, contraception, abortion, initiate relations.  Limiting his language to that domain, today’s case does not create quite the danger that the dissenters contend.  Again, though, there are legitimate bases to stretch the case beyond family privacy, and then the dissenters fears could, in theory, be realized.

6.  Some news reports have questioned how Roberts can be “on both sides” in these two cases--the Obamacare case and this one.  But there is nothing contradictory about what Roberts did.  In each case, he took the side of judicial restraint based on extremely plausible interpretive arguments.  Roberts may be wrong in one, both, or neither of the cases.  But his approach was deeply principled.

7.  I think this is a very good day for constitutional liberty generally and a truly great day for GLBT rights specifically.

Analysis of King v. Burwell -- The Obamacare Tax Subsidies Case

Here are my thoughts on the Supreme Court’s decision on June 25, 2015, in King v. Burwell.  In that case, the Court ruled that tax subsides are available to those purchasing health insurance on both (1) exchanges set up by a state itself, and (2) exchanges set up by the federal government for a state.  I agree with the Court’s ruling.  While I believe reasonable minds can differ in this case—something that is virtually always true when the decision is 6 to 3—I think the majority has the better argument, and by a good margin.

 

It will be difficult for me to write a summary of the case that digs deeply into the substance without almost rewriting the various opinions in full.  That is because complex statutory interpretation cases, like complex contract interpretation issues, come down to the weight of the evidence taken as a whole.  There are numerous relevant categories of evidence in these types of lawsuits.  And there are often multiple pieces of evidence from each category.  That is certainly true in King v. Burwell.  As a result, any true summary that I could write would leave out critical detail.  Given that, and for reasons of time, I am going to summarize the opinions in more general terms and include selected arguments for each side.

 

Before getting to those thoughts, however, let me note that statutory interpretation is not rocket science.  And it does not take a law degree to understand the basic concepts, even if it does take such a degree to capture some of the deeper nuances.  Accordingly, given that the case is not that long, those nonlawyers (and lawyers) deeply interested in this matter ought to consider reading the case in full rather than relying solely upon my assessment below.  The opinion is available here on the Supreme Court’s website.

 

Now, to business.  The Affordable Care Act says that tax subsidies are available to those people who buy health insurance on an exchange “established by the State.”  Given that the statute defines “State” to mean the 50 states and some territories, there is a good case that the four-word phrase “Established by the state” means that a person may only receive tax subsidies if the person buys insurance on a state exchange; those purchasing on a federal exchange may not receive the subsidies.  However, the single most important principle in statutory, contractual, and constitutional interpretation is that language must be read in context.  And the full context of the statute creates a powerful argument that “established by the State,” as used in the relevant provision, does not rule out subsidies on federal exchanges.  Indeed, Chief Justice Roberts marshals multiple types of arguments to make a compelling case that the tax subsidies apply to both state and federal exchanges, including (1) textual arguments (a close reading of the text), (2) structural arguments (analyzing the relationship of textual provisions throughout the statute), (3) purposive arguments (assessing the purposes or goals of the act, as reflected in both the language of the statute and material from outside the statute—called “extrinsic evidence”—such as legislative history), and (4) consequential arguments (focusing on the consequences of various interpretations and how those consequences match up with the language and purposes of the statute).

 

For an example of a close textual reading, the statute provides that if the state chooses not to set up an exchange, the federal government “shall . . . establish and operate such Exchange within the state.”  (Emphasis added.)  Roberts argues that this means that federal exchanges essentially stand in for state exchanges and should be treated in the same manner for many purposes.  In other words, Roberts is saying that the words “such exchange” support the conclusion that any federal exchange just is a state exchange (for many purposes).

 

For an example of a structural reading, Roberts points out that if tax subsidies are only available on state exchanges, then there will be no individuals who meet the tax subsidy eligibility standards in states with a federal exchange.  But, Roberts continues, the statute “clearly contemplates” that there will be qualified individuals for every exchange because all exchanges must make available health plans for qualified individuals.  How can an exchange make available health plans for qualified individuals if there are no qualified individuals for that exchange?  To put this argument in broad terms, Roberts is arguing that between the two readings of “established by the State,” one creates a conflict with other language in the statute and one doesn’t.  Consistent with long-established canons of statutory (and contractual) interpretation, it is better to chose the reading that avoids the conflict—the reading that allows subsidies for the federal exchanges.

 

Here is an example of an argument that combines structural, purposive, and consequentialist reasoning.  First, some basic principles.  The guaranteed issue provision requires that insurance companies provide insurance to anyone who requests to buy it regardless of preexisting conditions.  The community rating provision requires that everyone be charged largely the same price for health insurance regardless of their health condition.  And the individual mandate provision requires that everyone own insurance or pay a tax/penalty.  Roberts argues that these provisions will not work together as intended by the Affordable Care Act if the tax subsidies are not available on federal exchanges.  That is because, without the subsidies, many people cannot afford to buy insurance on the exchanges.  Most of those people will then be exempt from the individual mandate under one of the exceptions in the law and thus need not buy insurance.  Next, if the healthy people in that group do not buy insurance and the sick people do (a very likely occurrence), that will raise premiums, pricing more healthy people out of the market.  Finally, as more people are priced out of the market, insurance will become even more expensive, creating a feedback loop that Roberts calls a “death spiral.”  That feedback loop will defeat essential purposes of Obamacare reflected throughout the statute.

 

Roberts makes other powerful arguments.  In fact, I agreed with almost every point he made.  I do believe he overstated his case in a couple of places.  But overall, his arguments—and responses to the dissent’s arguments—were excellent.

 

Turning to the dissent, Justice Scalia presented a number of solid points.  But unlike Roberts, he also makes a number of unpersuasive arguments; and he overstates in multiple places.

 

Scalia makes more than a dozen distinct arguments in the dissent.  But I think three stand out from the others as strong bases for his position.

 

First, Scalia contends that the words “exchange established by the State” will have no meaning in the provision in question if that provision applies to both federal and state exchanges.  Such a result violates the canon of interpretation that all words in a legal text should be given meaning, if possible.  But I called this a “canon” for a reason.  It is not a rule.  It is just one, albeit important, factor to consider when interpreting legal language.  Moreover, the canon may not even apply here.  Remember that Roberts essentially argues that “established by the State” incorporates the federal exchanges due to other language (e.g., “such exchange” discussed above).  That would mean the three highlighted words do have meaning—just not their ordinary meaning.

 

Second, Congress chose to use the word “exchange” in some places and the phrase “exchange established by the State” in others.  That suggests that “exchange” and “exchange established by the State” have different meanings.  Point for Scalia.  This is one of Scalia’s strongest arguments, if not the best.

 

Third, Congress wrote that if a territory establishes an exchange (e.g., Puerto Rico, Guam, or the U.S. Virgin Islands), it shall be treated the same as if a state established the exchange.  Why didn’t Congress do the same with respect to exchanges established by the Federal Government?  Another good argument for Scalia.  However, Roberts essentially argues, in response, that Congress did not need to craft a similar provision for federal exchanges because the phrase “such Exchange,” discussed above, obviated the need to do so.

 

These three points, when mixed with a couple of other decent arguments Scalia offers, are simply not sufficient to overcome the much larger collection of persuasive arguments that Roberts presents.

 

As I said, Scalia also makes some unpersuasive arguments throughout his dissent.  Here are three examples. 

 

First, Scalia writes that it would be “hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words ‘established by the State.’”  This is false.  In fact, it is actually quite easy to come up with stronger language.  Scalia fails to see this because he ignores a basic and recognized principle in both statutory and contract drafting: If your goal is to exclude something, it is always more effective to exclude that thing expressly than it is to implicitly exclude it by simply leaving that thing out of a list of what is included.  And failing to follow this rule has cost legislatures and contracting parties in more cases than I can count.  Given this principle, here are three examples of how the language could more clearly have prohibited subsidies on the federal exchanges:

 

1.         “. . . exchanges established by the State, excluding those created by the Secretary of Health and Human Services,”

 

2.         “. . . exchanges established by the State pursuant to [the section setting forth the precise manner in which state exchanges are created] and not pursuant to [the section setting forth the precise manner in which federal exchanges are created]

 

3.         “. . . exchanges, except those established by the Secretary of Health and Human Services.”

 

All of these are clearly superior to the current wording in the statute, if the goal is to establish that tax subsidies do not apply to federal exchanges.

 

Second, Scalia essentially argues that “established by the State” must have the same meaning in each provision in which it is used in the act.  And if the four words are ignored when it comes to tax subsidies, the same must be true elsewhere.  This is incorrect.  It is indisputable that the same language can, and often does, mean different things in different contexts, even within the same statute or contract.  The fact that the same phrase is used in two places in a law or contract is important evidence that the meaning is the same.  But it is not the stringent rule that Scalia suggests.  Moreover, Roberts is best read as not actually arguing that the words mean something different in the relevant provision.  Instead, he is arguing that the provision, when read in context, does not exclude tax subsidies from federal exchanges because federal exchanges are supposed to be treated the same as state exchanges (at least for this purpose).

 

Third, according to the majority, if the tax subsidies are not available, then certain other provisions in the law would make little sense.  Scalia responds by saying that this only shows “oddity, not ambiguity.”  But here Scalia misses the point.  Oddity is precisely one of the bases that counts in favor of rejecting an interpretation.  Scalia is correct that oddity and ambiguity are two different things.  But the odder the result of an interpretation, the weaker that interpretation is.  Scalia continues by saying that laws often have unusual or mismatched provisions.  But when an interpretation leads to an usual result or a mismatch of two sections of a statute, that counts against the interpretation.  This result flows from multiple canons of construction, including (1) the preference for reasonable interpretations, (2) the preference for interpretations that are consistent with the principal purpose of a law, and (3) the canon that provisions should be read in harmony if possible.

 

Let me end by noting that King v. Burwell is a rather run-of-the mill case on statutory interpretation.  The opinions reflected some of the basic divisions among the members of the Court (and among lawyers and law professors more generally) regarding the appropriate method for interpreting statutes (and contracts and constitutions).  But both Roberts’s majority opinions and Scalia’s dissent were perfectly normal Supreme Court opinions addressing a perfectly mundane case (from the perspective of statutory interpretation).  Yes, this case had high political salience.  Thus, the attention it will get and the rhetoric it will spawn is going to be abnormal.  Indeed, Scalia’s dissent is filled with sky-is-falling rhetoric.  But that is rather common in dissents in cases like this—cases with high political salience.  Had Roberts and Kennedy sided with the Conservatives, I am rather sure that one of the four Liberals would have used similar rhetoric in dissent, much like Ginsburg (wrongfully) did in the Hobby Lobby/religious accommodation case.   In short, do not believe any statements that this case has “fundamentally altered our constitutional order” or any other such hyperbolic nonsense.  This was a typical statutory construction case, quite similar to the statutory and contract interpretation disputes American courts handle every day.