Abigail Moncrieff Examines Chief Justice Roberts’ Majority Opinion in King v. Burwell
Essays published on The Health Affairs blog and the BU Law Review explore the underpinnings of the Court’s decision, handed down in June 2015.
Associate Professor of Law Abigail Moncrieff is a well-known expert of health law and the Constitution. She has written extensively on the Supreme Court cases concerning the Affordable Care Act, including an amicus brief authored for last year’s King v. Burwell that was referenced by several of the justices, including swing Justice Anthony Kennedy, in oral arguments.
In the brief, written with the Jewish Alliance for Law and Social Action (JALSA), Moncrieff et al. argue that the petitioner’s interpretation of the statute would have treated health insurance subsidies as incentives for states to establish exchanges. Such an interpretation would render the statute plausibly unconstitutional under two principles of federalism: that Congress can’t coerce states into implementing federal programs and that the federal government must treat all states equally. Under the interpretive principle of constitutional avoidance, Moncrieff asserts, the Court should adopt the government’s understanding of the statute in order to avoid potential constitutional defects.
Since that ruling was handed down in June, Moncrieff has continued to look at the case through her analysis of the majority and opposing opinions. In a pair of essays published on The Health Affairs blog and in the Boston University Law Review Annex, Moncrieff examines the majority opinion, written by Chief Justice John Roberts, in the Supreme Court’s ruling on King.
Noting her surprise at the reasoning behind the majority opinion, her abstract states:
In these two short essays, I examine the somewhat bizarre—and potentially harmful—ways that Chief Justice John Roberts escaped the tension between legalism and realism in King v. Burwell, the Court’s latest Obamacare case. King presented a close legalistic case but a slam-dunk realist case in favor of an IRS interpretation of Obamacare. Roberts opted for the realistic result, but he got there through a bizarre combination of legalistic maneuvers. In “The Argument that Wasn’t,” I note that Roberts refused to make the full legalistic argument in the government’s favor, ignoring an invocation of the constitutional avoidance canon that got attention at oral arguments and that would have defeated the plaintiffs’ legalistic interpretation. I hypothesize that Roberts’s refusal to use constitutional avoidance might have been a quiet resistance to the plaintiffs’ willful blinders to an empirically obvious congressional intent. But in “King, Chevron, and the Age of Textualism,” I note that Roberts also refused to assert the empirically obvious interpretation of Obamacare as a legal conclusion at Chevron Step One, preferring instead to use Chevron Step Zero and the “major questions exception” to justify his turn to purposive interpretation. That maneuver, I argue, could do major damage to Chevron without providing any offsetting benefit. I argue that Roberts should have embraced the obviously correct interpretation of Obamacare as a legal conclusion at Step One rather than invoking Step Zero to escape his legalistic bind.
Moncrieff’s papers are available for download on her SSRN page.
