{"id":2152,"date":"2015-07-01T18:23:21","date_gmt":"2015-07-01T22:23:21","guid":{"rendered":"https:\/\/www.bu.edu\/bulawreview\/?page_id=2152"},"modified":"2019-11-28T18:19:44","modified_gmt":"2019-11-28T23:19:44","slug":"moncrieff","status":"publish","type":"page","link":"https:\/\/www.bu.edu\/bulawreview\/bulronline\/moncrieff\/","title":{"rendered":"King, Chevron<\/em>, and the Age of Textualism"},"content":{"rendered":"

Abigail R. Moncrieff
\n<\/a><\/strong>Essay<\/strong><\/span>
\n95 B.U. L. Rev. Annex 9 (2015)<\/strong><\/span><\/p>\n

PDF<\/a><\/p>\n

In the King v. Burwell <\/em>oral arguments, Chief Justice John Roberts\u2014usually one of the more active members of the Court\u2014asked only one substantive question, addressed to the Solicitor General: \u201cIf you\u2019re right about Chevron<\/em> [deference applying to this case], that would indicate that a subsequent administration could change [your] interpretation?\u201d As it turns out, that question was crucial to Roberts\u2019s thinking and to the 6-3 opinion he authored, but almost all commentators either undervalued or misunderstood the question\u2019s import (myself included). The result of Roberts\u2019s actual thinking was an unfortunate outcome for Chevron<\/em>\u2014and potentially for the rule of law\u2014despite the happy outcome for the Obama Administration.<\/p>\n

King <\/em>Background<\/strong><\/h3>\n

The central question in King<\/em> was whether Obamacare allows the Internal Revenue Service (IRS) to distribute health insurance subsidies nationwide or whether, instead, the statute limits subsidies to states that establish their own health insurance exchanges. In a 2012 rulemaking, the IRS interpreted the statute to permit subsidies in all states, regardless of the states\u2019 exchange establishment choices. The plaintiffs argued that the IRS Rule was contrary to statute, pointing to language in an arcane provision, 26 U.S.C. \u00a7\u00a036B, to argue that Obamacare intended to limit subsidies to establishing states. The relevant provision sets the formula for calculating subsidy amounts, and it calibrates subsidies to the cost of insurance purchased on \u201can Exchange established by the State<\/em>,\u201d without making reference to the fallback Exchange that the federal government set up for non-establishing states. Based on that language, the plaintiffs argued that Congress intended to use subsidies as an incentive for states to take on the thankless task of creating and managing the exchanges.<\/p>\n

In defending the IRS Rule against the plaintiffs\u2019 interpretation, the government\u2019s primary rebuttal was that the overall statutory structure would fall apart if subsidies were disallowed. Obamacare rests on three interlocking pieces: market reforms, mandates, and subsidies. But the mandates are unenforceable without the subsidies, and the market reforms don\u2019t work without the mandates. The statute was designed such that all three pieces needed to be in place for the regulatory regime to work. Removing any one of them would cause the whole thing to collapse. Furthermore, collapse of the regulatory regime through withdrawal of subsidies would not leave states in the same position they were in before Obamacare passed. Given the statute\u2019s structure, withdrawing the subsidies would nullify the mandates while leaving the market reforms in full force and effect. But in the absence of subsidies and mandates, the market reforms would cause untold harm in individual insurance markets\u2014the \u201cdeath spirals\u201d that everyone, including the Court, referenced throughout the arguments and in the opinions.<\/p>\n

The Solicitor General made this case before the Court, arguing that Congress could not possibly have intended its statute to be purposefully destructive in states that refused to establish exchanges. The government also made a careful (but not particularly persuasive, to my mind) textual case that the federal exchange ought to qualify as an \u201cExchange established by the State\u201d because \u201cestablished by the State\u201d was a term of art for \u201cestablished in the state.\u201d But the government never explained why Congress would use \u201cby\u201d as a term of art for \u201cin\u201d\u2014or how the inclusion of that \u201cterm of art\u201d added anything meaningful to the statute that would have been lacking if the provision had simply said \u201can Exchange established under this Act.\u201d<\/p>\n

Chevron<\/em> Background<\/strong><\/h3>\n

In an ordinary case involving an administrative agency\u2019s interpretation of a statute, the court would assess the agency\u2019s construction under the Chevron <\/em>framework. Chevron<\/em> instructs courts to defer to administrative agencies\u2019 reasonable interpretations of ambiguous statutory terms, at least as long as the agency\u2019s interpretation appears in a rule or order that carries \u201cthe force of law.\u201d1<\/span><\/span><\/a><\/sup>\u00a0Here, the IRS had interpreted the relevant portions of Obamacare to allow subsidies nationwide, and it had, on the basis of that interpretation, promulgated a rule\u2014indisputably with the force of law\u2014that treated all states the same for subsidy purposes. In a statement accompanying the IRS\u2019s final rule, the agency argued that its interpretation was \u201cconsistent with the language, purpose, and structure of section 36B and the Affordable Care Act as a whole.\u201d2<\/span><\/span><\/a><\/sup><\/p>\n

According to straightforward understandings of Chevron<\/em>, the IRS\u2019s interpretation obviously should have triggered the Chevron<\/em> framework. Chevron <\/em>would then have instructed the Court to ask only two questions to determine the permissibility of the IRS Rule: (1) Is the statute silent or ambiguous on the precise question at issue, even after applying all of the traditional tools of statutory construction to discern statutory meaning? (2) If yes\u2014if no single meaning is apparent from the statute as ordinarily construed\u2014is the agency\u2019s interpretation reasonable? If the Court had concluded that the statute was ambiguous and that the agency\u2019s interpretation was reasonable, then it could have upheld the IRS Rule without holding that the agency\u2019s interpretation was the \u201cright\u201d interpretation of the statute.<\/p>\n

After such a holding, however, future administrations would have been able to change course. When a court upholds an agency\u2019s construction under Chevron<\/em>, the holding allows future administrations to reverse or alter the construction at will, as long as the new construction is also reasonable. Indeed, in Chevron <\/em>itself, the interpretation the Court was reviewing was a reversal of the Environmental Protection Agency\u2019s longstanding construction of a Clean Air Act provision, and the Court deferred to it anyway. In a later case, Brand X<\/em>,3<\/span><\/span><\/a><\/sup>\u00a0the Supreme Court made explicit its understanding that agencies may, over time, alternate among reasonable interpretations of ambiguous statutory terms.<\/p>\n

The Chief Question<\/strong><\/h3>\n

Roberts\u2019s question at the King <\/em>oral arguments was a request for confirmation that the usual pattern would apply here. If the Court upheld the IRS\u2019s interpretation under Chevron<\/em>, he asked, would a future president and a future IRS be legally allowed to take subsidies away from Americans living in non-establishing states? The Solicitor General answered that a reversal in the interpretation would likely be \u201cunreasonable\u201d under Chevron<\/em> Step Two, but that answer ought to have been little comfort to those who prefer the Obama Administration\u2019s approach. Agencies basically never lose at Chevron<\/em> Step Two.<\/p>\n

In the aftermath of the oral arguments, the vast majority of commentators, including most prominently Jeffrey Toobin,4<\/span><\/span><\/a><\/sup>\u00a0understood the Chief\u2019s question as an indication of his interest in using Chevron<\/em> as a kind of \u201cpassive virtue\u201d5<\/span><\/span><\/a><\/sup>\u2014a way for the unelected Court to avoid deciding a politically contentious question with finality. A Chevron<\/em> holding would assign to the executive branch the power and duty to choose among plausible interpretations of \u00a7\u00a036B.<\/p>\n

At least at a superficial level, King<\/em> seemed like the perfect candidate for that kind of holding. On a simplistic understanding of the case and the statute, the issue in King<\/em> presented a conflict between two policy \u201cgoods\u201d: universal insurance and federalism. The government\u2019s argument was that Obamacare intended to give everyone in the country access to affordable insurance, which required nationwide subsidies, but the plaintiffs\u2019 argument was that Obamacare intended to avoid a complete federal takeover of health insurance regulation, which required state-based exchanges. And according to the plaintiffs, the contingency of subsidies on exchange establishment was a necessary piece of the overall statutory commitment to preserving state power in healthcare regulation\u2014a crucial incentive for the states to agree to establish and manage their own exchanges. The debate thus centered on a policy tension within the statute, and there was no doubt that both sides were, in a superficial sense, right. Obamacare really did try to achieve universal affordable health insurance, and it really did try to avoid a federal takeover of health insurance regulation.<\/p>\n

When a question of statutory interpretation involves a difficult accommodation of conflicting policy goals\u2014like the tension between economic growth and environmental protection at issue in Chevron<\/em> and the superficial tension between universal insurance and federalism at issue in King<\/em>\u2014the argument for Chevron<\/em> deference is particularly strong. A Chevron<\/em> holding allows the Court to avoid declaring an outcome, leaving the political balancing act to a political branch: the administrative agencies. In King<\/em>, a Chevron <\/em>holding would have allowed the Obama Administration to prioritize universal insurance over federalism while allowing a future administration to instead prioritize federalism over universal insurance.<\/p>\n

After the oral arguments, in all of the commentary I read (which was certainly not all, but probably was most, of the commentary that existed), everyone interpreted Roberts\u2019s question along these lines. Roberts is generally a fan of leaving difficult policy choices to the political branches\u2014as he made clear in his same sex marriage dissent the day after announcing King<\/em>\u2014and his question about Chevron<\/em> seemed to indicate an interest in following the same strategy for Obamacare. According to the commentary, Roberts appeared inclined to vote for the government but to do so in a way that would allow future administrations to shift gears.<\/p>\n

The commentary could not have been more wrong.<\/p>\n

Roberts v. Roberts<\/strong><\/h3>\n

In his opinion for the Court in King<\/em>, Roberts argued that the relevant provision of Obamacare is ambiguous, but he refused to defer to the IRS\u2019s interpretation under Chevron<\/em>. Instead, he invoked the \u201cmajor questions exception\u201d\u2014an infinitely flexible doctrinal escape-hatch for Chevron <\/em>cases\u2014holding that the Chevron<\/em> framework is inapplicable when the question at issue is one of \u201cdeep \u2018economic and political significance.\u2019\u201d6<\/span><\/span><\/a><\/sup>\u00a0Rather than letting the agency decide such a major question, Roberts held that it is \u201cour task\u201d\u2014the Court\u2019s\u2014\u201cto determine the correct reading of Section 36B.\u201d7<\/span><\/span><\/a><\/sup><\/p>\n

What a strange contrast to the Chief Justice Roberts who argued, so emphatically and only a day later, that it is not<\/em> the Court\u2019s task to determine the scope of the constitutional interest in marital privacy!8<\/span><\/span><\/a><\/sup>\u00a0Both King<\/em> and Obergefell<\/em> presented delicate and contentious political issues, and in both cases, the Court had available to it valid doctrinal bases for deferring to the political branches. In King<\/em>, the Court could have used Chevron<\/em> to defer to the IRS, and in Obergefell<\/em>, the Court could have used rational basis review or intermediate scrutiny to defer to the states, distinguishing Loving v. Virginia<\/em>9<\/span><\/span><\/a><\/sup>\u00a0on the ground that the earlier case involved the suspect classification of race while the latter case involved, at most, an intermediate classification of gender. (Sexual orientation is still, even after Justice Kennedy\u2019s majority opinion in Obergefell<\/em>, not a suspect classification). But Roberts summarily cast aside the deferential approach in King<\/em> even while arguing forcefully for deference in Obergefell<\/em>.10<\/span><\/span><\/a><\/sup><\/p>\n

What explains the difference? Consider one simple explanation: It\u2019s easier to amend a statute than it is to amend the Constitution. If the Court interprets Obamacare in a way that is politically unpopular, Congress can fix it by passing a statutory amendment through the ordinary lawmaking process. If the Court interprets the constitutional right to marital privacy in a way that is politically unpopular, the political branches can fix it only by passing a constitutional amendment, which requires a supermajority vote in Congress or the state legislatures. The need for deference is therefore stronger in a constitutional case than in a statutory case.<\/p>\n

But if that\u2019s the reason for the distinction, then why have Chevron<\/em> at all? That logic would justify wholesale abandonment of Chevron<\/em>; it does not justify retail exceptions. And Roberts is not inclined to attack Chevron<\/em> as a general matter. There was something peculiar about King<\/em> that made him sideline deference in that case only.<\/p>\n

Chevron<\/em> v. Textualism<\/strong><\/h3>\n

Now consider a more nuanced and complicated explanation: In both cases, Roberts wanted courts to enforce the political branches\u2019 policy choices. In Obergefell<\/em>, enforcement of the states\u2019 political choices required rejection of the constitutional claim and application of deferential \u201crational basis\u201d review. But in King<\/em>, the political choice that Roberts wanted to enforce was not the IRS\u2019s or any agency\u2019s; it was the 2010 Congress\u2019s. Despite the sloppily drafted statutory text, Roberts thought it clear that the 2010 Congress\u2014the Congress that enacted Obamacare\u2014wanted subsidies to be available nationwide. He thought it clear that the 2010 Congress, while concerned about federalism, never intended to use subsidies as an incentive for states to establish their own exchanges. A threat of withholding subsidies\u2014which was tantamount to a threat of purposefully destroying insurance markets in non-establishing states\u2014was too extreme, and there was no evidence beyond the sloppy text that Congress actually intended to convey such a threat.<\/p>\n

Enforcement of Congress\u2019s <\/em>political choice\u2014enforcement of the enacting Congress\u2019s intended balance between universal insurance and federalism\u2014required the Court to bind not only the Obama Administration but also all future administrations to the uniform availability of subsidies. Under the principle of legislative supremacy, clear congressional choices always trump agencies\u2019 choices, even when Congress has delegated some interpretive power to the executive. In order to enforce legislative supremacy and to defer to Congress\u2019s<\/em> choice, Roberts needed to hold that the statute not only permits but requires<\/em> the IRS to make subsidies available nationwide. Given the entirety of his opinion, that seems quite clearly to have been Roberts\u2019s conclusion.<\/p>\n

But why sideline Chevron<\/em> to get there? Under Chevron<\/em> Step One, the Court must use all \u201ctraditional tools of statutory construction\u201d to determine whether \u201cCongress had an intention on the precise question at issue,\u201d and if the Court finds a clear congressional intent, then \u201cthat intention is the law and must be given effect.\u201d11<\/span><\/span><\/a><\/sup>\u00a0If Roberts thought it obvious that Congress intended to make subsidies available nationwide, why did he not simply hold under Chevron<\/em> Step One that Congress\u2019s intent was clear and that the IRS\u2019s construction was the only correct interpretation of the statute? Why did he argue, instead, that Section 36B is ambiguous but that this and future agencies deserve no deference under Chevron<\/em>?<\/p>\n

The problem is that Roberts lives in the age of textualism. Section 36B contained language\u2014\u201cestablished by the State\u201d\u2014that the government\u2019s interpretation rendered superfluous. The government gave no explanation for the presence of that language other than a \u201cterm of art\u201d argument that I found unconvincing, despite agreeing with the government\u2019s conclusion, and Roberts apparently found it unconvincing, too. He made no reference to the \u201cterm of art\u201d view and admitted that his construction rendered the words \u201cby the State\u201d superfluous. Upon that admission, however, Roberts needed to justify his decision to read three words out of the statute. His justification was that enforcement of the text would undermine the purpose\u2014though Roberts, in his age of textualism, carefully used the term \u201clegislative plan\u201d rather than \u201clegislative purpose\u201d in making that argument.<\/p>\n

So where\u2019s the Chevron <\/em>problem? Surely legislative purpose is a \u201ctraditional tool of statutory construction\u201d that should be permissible at Chevron <\/em>Step One. Apparently not, according to Roberts. In the age of textualism, Roberts argued, broad notions of legislative purpose\u2014particularly if the purpose is most clearly evident from sources extrinsic to the text of the relevant provision\u2014are admissible evidence of congressional intent only if the statutory text is ambiguous. But in the simultaneous age of Chevron<\/em>, ambiguous statutory text constitutes a delegation of interpretive power to the agency, not to the courts. For a smart and pragmatic textualist in the age of Chevron<\/em>, King<\/em> highlights an annoying \u201cgotcha.\u201d<\/p>\n

In King<\/em>, the answer to the statutory question is perfectly obvious if you\u2019re willing to take off the textualist\u2019s blinders to legislative purpose. But if you\u2019re a modern textualist judge, the only permissible way to take off your blinders is to argue first that the statutory text is ambiguous. But if you argue that the statutory text is ambiguous, then you have to defer to the agency. But if you defer to the agency, then future administrations will be allowed to implement an interpretation of the statute that you know, despite your blinders, is actually inconsistent with congressional intent\u2014as Roberts went out of his way to confirm at oral arguments. But if you allow future administrations to violate an extrinsically obvious but textually ambiguous legislative intent, you will have violated your obligation to enforce legislative supremacy. But, but, but\u2026 How to escape?<\/p>\n

For Roberts, the answer was the major questions exception to Chevron<\/em> deference. As noted above, the major questions exception is infinitely flexible. The Court has never articulated a standard for distinguishing \u201cmajor\u201d from \u201cminor\u201d questions other than its oblique reference to \u201ceconomic and political significance.\u201d And pretty much anything Congress legislates could satisfy a standard of \u201ceconomic and political significance.\u201d If a question were not economically and politically significant, Congress would not have spent its time passing a statute about it. The standard is\u2014or could easily become\u2014tautological.<\/p>\n

The major questions exception reminds me of the opening scene in Disney\u2019s Aladdin<\/em>, in which a street merchant is trying to sell a device of unknown usefulness: \u201cCombination hookah and coffee maker!\u201d he announces. \u201cAlso makes julienned fries!\u201d Then he bangs the device on the table, proclaiming, \u201cIt will not break! It will not [sproing.] It broke.\u201d12<\/span><\/span><\/a><\/sup><\/p>\n

With enough applications, the major questions exception could subsume Chevron<\/em>. Roberts needed an escape hatch from his Chevron<\/em>-textualism bind, and he used the most readily apparent and flexible one available\u2014the one that also makes julienned fries! In so doing, however, he banged the major questions exception on the table, adding to the list of \u201cmajor questions\u201d invocations in a way that could ultimately undermine his own and Chevron<\/em>\u2019s commitment to judicial deference.<\/p>\n

An Escape from the Escape<\/strong><\/h3>\n

I have a modest suggestion. When the correct answer to a statutory question is obvious to everyone who\u2019s willing to be honest about congressional intent\u2014but the obvious answer cannot be proved by applying the \u201cacceptable\u201d tools of statutory construction (however the \u201cacceptable\u201d toolbox is delimited in a given era)\u2014judges should simply assert the obvious answer regardless. And they should do so openly and notoriously at Chevron <\/em>Step One, without pulling Houdini-like escapes from the legalistic straight-jackets of their interpretive philosophies.<\/p>\n

Textualism has made tremendous headway in the last several decades, and not without good cause. When the answer to a statutory question is genuinely not<\/em> obvious, judges promote predictability and transparency\u2014also known as \u201cthe rule of law\u201d\u2014by limiting their inquiry, as much as possible, to the text of the statute. Chevron<\/em> has similarly served as a powerful and sensible restraint on courts. Judges serve rule of law and separation of powers values by deferring to reasonable administrative interpretations of ambiguous statutory terms.<\/p>\n

But judges do not serve any legitimate values by ignoring obviously correct resolutions of statutory cases simply because the text of the statute is inartfully drafted, and judges undermine important rule of law values by refusing deference to agencies for no reason other than their desire to reach beyond the \u201cacceptable\u201d toolbox of statutory construction and their sense that they cannot do so under Chevron<\/em> Step One.<\/p>\n

In King<\/em>, there was an ever-growing mountain of evidence\u2014all extrinsic to the statutory text and structure\u2014that the 2010 Congress intended to make subsidies available nationwide,13<\/span><\/span><\/a><\/sup>\u00a0that the plaintiffs in the case were relatively uninterested in the case\u2019s outcome,14<\/span><\/span><\/a><\/sup>\u00a0and that the lawyers and think tanks funding the lawsuit were primarily interested in destroying rather than enforcing the statutory scheme.15<\/span><\/span><\/a><\/sup>\u00a0There was no extrinsic evidence on the other side. The only evidence for the plaintiffs\u2019 view was the text. The plaintiffs\u2019 lawyers invented a plausible fairy tale to explain their interpretation\u2014an extended daydream of some nonexistent but sensible Congress that intended to use subsidies as an incentive for states to establish exchanges\u2014but the story was transparently fictional. Everyone knew that the real 2010 Congress had no such intent.<\/p>\n

The first expositors of the plaintiffs\u2019 statutory argument, Jon Adler and Michael Cannon, pointed to one statement of Senator Ben Nelson\u2019s that might have supported their fairy tale version of congressional intent,16<\/span><\/span><\/a><\/sup>\u00a0but in all of my conversations with them in academic debates and on Twitter, Adler and Cannon fiercely denied that they were pointing to Nelson\u2019s statement as evidence of actual intent. To their mind, textualism demanded an intent-free, robotic interpretation of the statutory text, and actual congressional intent mattered not at all. But that\u2019s crazy. \u201cWords no longer have meaning\u201d17<\/span><\/span><\/a><\/sup>\u00a0if not understood as representations of their speaker\u2019s intent.<\/p>\n

Textualism\u2019s rejection of intent is\u2014and should always be\u2014a rejection of flimsy extrinsic evidence, cherry-picked empirical arguments, and conclusory judicial assertions of actual intent. It is not\u2014and should not ever become\u2014an instruction to judges to adopt any plausible story of congressional intent that fits the text, even if all of the extrinsic evidence in the world indicates that the asserted story of congressional intent is empirically wrong. King<\/em> became a close case\u2014and Chevron<\/em> became a weaker doctrine\u2014because the textualist rejection of flimsy extrinsic evidence of intent expanded dangerously into the territory of abandoning intent itself.<\/p>\n

Roberts\u2019s opinion is a resounding victory for Obamacare; it is a modest victory for smart structural interpretation in the age of textualism; it is a timid victory for pragmatic and economic realism. But it is not an unambiguous triumph of rationality over legalism.<\/p>\n

Roberts closed his opinion with this observation: \u201cCongress passed the Affordable Care Act to improve health insurance markets, not to destroy them.\u201d18<\/span><\/span><\/a><\/sup>\u00a0As everyone including Adler and Cannon and Scalia, Thomas, and Alito recognized, the plaintiffs\u2019 interpretation would have threatened to destroy health insurance markets in 34 states while the IRS\u2019s interpretation sought to improve them. That should have been good enough for Chevron<\/em> Step One.<\/p>\n

Obvious congressional intent should be the law whether obvious from the text or not. Otherwise, the law becomes \u201cpure applesauce.\u201d19<\/span><\/span><\/a><\/sup>\u00a0(Whatever that means).<\/p>\n

 <\/p>\n

\n

 <\/p>\n

[1]<\/span><\/span><\/a> United States v. Mead Corp, 533 U.S. 218 (2001).<\/p>\n

[2]<\/span><\/span><\/a> Health Insurance Premium Tax Credit, 77 Fed. Reg. 30377, 30378 (proposed May 23, 2012) (to be codified at 26 C.F.R. pts. 1 and 602).<\/p>\n

[3]<\/span><\/span><\/a> Nat\u2019l Cable & Telecommunications Ass\u2019n v. Brand X Internet Servs., 545 U.S. 967 (2005).<\/p>\n

[4]<\/span><\/span><\/a> Jeffrey Toobin, Did John Roberts Tip His Hand?<\/em>, The New Yorker (Mar. 4, 2014), http:\/\/www.newyorker.com\/news\/daily-comment\/did-john-roberts-tip-his-hand.<\/p>\n

[5]<\/span><\/span><\/a> Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2d ed. 1986).<\/p>\n

[6]<\/span><\/span><\/a> King v. Burwell, No. 14-114, slip op. at 8 (U.S. June 25, 2015) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000)).<\/p>\n

[7]<\/span><\/span><\/a> Id.<\/em><\/p>\n

[8]<\/span><\/span><\/a> Obergefell v. Hodges, No. 14-556, slip op. at 1-29 (U.S. June 26, 2015) (Roberts, C.J., dissenting).<\/p>\n

[9]<\/span><\/span><\/a> 388 U.S. 1 (1967).<\/p>\n

[10]<\/span><\/span><\/a> Obergefell<\/em>, slip op. at 2 (Roberts, C.J., dissenting) (\u201c[A] State\u2019s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational.\u201d).<\/p>\n

[11]<\/span><\/span><\/a> Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984).<\/p>\n

[12]<\/span><\/span><\/a> Aladdin (Walt Disney Pictures), available at<\/em> https:\/\/www.youtube.com\/watch?v=Cd7aik82JyA.<\/p>\n

[13]<\/span><\/span><\/a> See, e.g.,<\/em> Robert Barnes, Supreme Court Case on Key Obamacare Provision Takes up this Senator\u2019s Account<\/em>, Wash. Post (Jan. 28, 2015), http:\/\/www.washingtonpost.com\/politics\/courts_law\/supreme-court-case-on-key-obamacare-provision-takes-up-this-senators-account\/2015\/01\/28\/339ca646-a6fc-11e4-a2b2-776095f393b2_story.html; Robert Pear, 4 Words Imperil Health Law; All a Mistake, Its Writers Say<\/em>, N.Y. Times, May 26, 2015, at A1.<\/p>\n

[14]<\/span><\/span><\/a> Louise Radnofsky, Jess Bravin, & Brent Kendall, Health-Law Challenger\u2019s Standing in Supreme Court Case Is Questioned<\/em>, Wall St. J. (Feb. 6, 2015, 6:52 PM), http:\/\/www.wsj.com\/articles\/health-law-challengers-standing-in-supreme-court-case-is-questioned-1423264458.<\/p>\n

[15]<\/span><\/span><\/a> Jeffrey Toobin, Hard Cases<\/em>, The New Yorker (Mar. 9, 2015), http:\/\/www.newyorker.com\/magazine\/2015\/03\/09\/hard-cases-jeffrey-toobin.<\/p>\n

[16]<\/span><\/span><\/a> Jonathan H. Adler & Michael F. Cannon, Taxation Without Representation: The Illegal IRS Rule to Expand Tax Credits Under the PPACA<\/em>, 23 Health Matrix 119, 149 n.109 (2013).<\/p>\n

[17]<\/span><\/span><\/a> King v. Burwell, No. 14-114, slip op. at 2 (U.S. June 25, 2015) (Scalia, J., dissenting).<\/p>\n

[18]<\/span><\/span><\/a> King<\/em>, slip op. at 21 (Roberts, C.J., dissenting).<\/p>\n

[19]<\/span><\/span><\/a> King<\/em>, slip op. at 10 (Scalia, J., dissenting).<\/p>\n

Click here<\/a> for the PDF.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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