On March 4, 2015 the Oral Arguments were made. Without going too deep into it, March was a busy month for me personally, and honestly I missed the whole proceedings.
The main reason I am writing this article now is that my interest was peeked, when I heard speculation that Chief Justice Roberts may either concur or agree with a majority in Obergefell v. Hodges to buy cover for ruling against the Government in King v. Burwell.
I do not like to tea read, particularly when it comes to the Supreme Court. After listening to quite a few oral arguments, I find speculation to be mostly pointless. That is not to say that oral arguments are pointless to listen to.
The Justices are not advocates; thus it is often difficult to ascertain how they will rule based off of the questions they ask. For example some of the most difficult question during the oral arguments for the Plaintiffs in Obergefell came from Justice Breyer, who in all likelihood will rule in favor of the plaintiffs.
Point One
The crux of case lies with the reading of sections 1311 and 1321 of the ACA. While I understand that I am typically biased towards Justice Breyer, I cannot find an agreement from the Plaintiffs that satisfies his central point:
"If you're going to elaborate on that, I would appreciate your in your elaboration, I've read that, and this statute is like the tax code more than it's like the Constitution. There are defined terms, and the words you just used concern a defined term. As I read the definition, there's a section, Definitions, and it says, quote, The term "Exchange" means, quote, an exchange established under 1311. And 1311 says, An Exchange shall be a government agency, et cetera, that is established by a State. Those are the definitions. So then you look to 1321. And 1321 says, if a State does not set up that Exchange, then the Federal, quote, secretary shall establish and operate such Exchange. So it says, "The Secretary is to establish and operate such Exchange," the only kind of Exchange to which the Act refers, which is an quote, "an Exchange established by a State under 1311." That's the definition. So the statute tells the Secretary, set up such Exchange, namely, a 1311 State Exchange.... and there's nothing else in this statute....so that's throughout what they're talking about. So what's the problem?"After quite a long hypothetical from Justice Kagan, which very bluntly explains what a substitution is, Justice Breyer and the attorney for the Plaintiff get into a bit of a discussion on epistemology:
Mr. Carvin: We implore you to examine these words in the context of the Act as a whole because our argument becomes stronger for five reasons. To respond to Justice Breyer's point, he says such Exchange connotes that it's the same person doing it. But look at the provision on territorial Exchanges. It says, territories can establish such Exchanges and then it says, "and shall be treated as a State." So-- so--
Justice Breyer: Yes, it does. But you say connote. No, it's not a question of connotation; it is a question of denotation. Now what does that mean? It means that the Federal government, the Secretary, is establishing a thing for the State. And what is the thing? The thing that it is establishing for the State is defined as an Exchange established by the State.
Mr. Carvin: To --
Justice Breyer: Now, that person from Mars, who's literal, which I usually am not, but a literalist, I think would have to read it that way. But if you-- if you're not a literalist, well, at least you could read it that way. Now you want to go into the context if you want to go into the context, at that point it seems to me your argument really is weaker.Based off of Justice Breyer's statement it would appear that the Government's position is support by a literalist's interpretation, which is bad for the Plaintiff. Once again this was my impression before hearing the Oral Arguments.
Point B
When it comes to what Chief Justice Roberts and Justice Kennedy said during the proceedings, it was fairly brief. Neither asked that many questions. Justice Kennedy asked more questions, but due to how he ruled in the previous decision, it will be interesting to see how he will rule in this case.
When discussing the Plaintiffs position Justice Kennedy raises a very interesting conclusion for the Plaintiffs reading of the Statute:
"Let me say that from the standpoint of the dynamics of Federalism, it does seem to me that there is something very powerful to the point that if your argument is accepted, the States are being told either create your own Exchange, or we'll send your insurance market into a death spiral. We'll have people pay mandated taxes which will not get any credit on on the subsidies. The cost of insurance will be skyhigh, but this is not coercion. It seems to me that under your argument, perhaps you will prevail in the plain words of the statute, there's a serious constitutional problem if we adopt your argument."Once again I do not do tea leaf readings, but based on this quote, if Justice Kennedy were to accept the Plaintiffs argument, then he would have to rule that the Federal Exchanges are unconstitutional as promulgated.
And as with Bond v. United States, 572 U.S. (2014) in ambiguity, the Court must read a statute in a way where it does not impinge on the basic Federal-State relationship.
When it comes to Chief Justice Roberts, once again, besides for procedural issues he was mostly silent. Perhaps the most interesting question he raised was "If you're right if you're right about Chevron, that would indicate that a subsequent administration could change that interpretation?"
In other words, if the Court does not agree with Justice Breyer, in that the governments reading is not based on ambiguity, and agrees with with government because of the statute being ambiguous, the next administration could take away healthcare for millions of Americans.
Point III
This section actually agrees in part with something Justice Scalia said. Quelle horreur, I know! Justice Scalia raise a very good point about the whole situation:
"What about what about Congress? You really think Congress is just going to sit there while while all of these disastrous consequences ensue. I mean, how often have we come out with a decision such as the you know, the bankruptcy court decision? Congress adjusts, enacts a statute that that takes care of the problem. It happens all the time. Why is that not going to happen here?"In this context, Justice Scalia is referring to a circumstance where the Court rules in favor of the Plaintiff. but it also begs the why hasn't Congress clarified the situation. Well, other than the fact that the lower courts have ruled in favor of the Government. Congress could easily have fix this problem and made this case moot and also secured health care for 8-9 million Americans.
It's the legislature's job to fix legislation when it is broken or too unclear (when it's beyond Chevron Deference.) This is a similar argument to when a statute is declared unconstitutional. It is up to the legislature to strike it from the books. It's why Texas still has anti-sodomy laws on their books. It's also the reason why the Voting Rights Act remains disassembled after Shelby County.
It drives me crazy when these situations arise, because they are often times so easy to fix. And yet they seem to never get done.
Liam '15
