The Volokh Conspiracy
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[Note: This post has been updated and re-posted.]
On Wednesday, March 4, the Supreme Court heard oral argument in the third Obamacare case to reach One First Street, King v. Burwell. The question in the case is whether the IRS is authorized to issue tax credits in exchanges established by the federal government, given that the statute only expressly authorizes such credits for the purchase of insurance in exchanges "established by the State."
The arguments upon which the plaintiffs' case are based were first aired on the VC in this post from September 2011. Additional posts followed. It doesn't make sense to link to them all, but here are some of the highlights from VC blogging on this case over the past few years.
- How "the case that could topple Obamacare" began—background on how the arguments behind this litigation developed.
- What the Supreme Court said about the IRS tax credit rule—how SCOTUS decisions in UARG and Bay Mills bear on Halbig and King.
- On Halbig and statutory interpretation (with a reply to Professor Bagley)—a discussion of the Halbig decision and its significance
- Why the DC Circuit's interpretation of the ACA in Halbig v. Burwell is far from "absurd"—Ilya Somin on the D.C. Circuit decision in Halbig v. Burwell.
- Michael Greve on Halbig and its aftermath
- Oklahoma district court rejects IRS tax credit rule—a discussion of the second judicial decision against the administration's position.
- Since when was health reform authored in the House?—a response to erroneous arguments made by congressional supporters of the PPACA.
- Will the Supreme Court grant certiorari in King v. Burwell—a discussion of why the Court might consider taking the case (which it eventually did).
- Why did the Court grant cert in King v. Burwell?—a brief discussion of why the Court likely took the case, and what it means.
- Debating King v. Burwell (with comments on Krugman)—a corrective to some of the common arguments made by political pundits who know little about the law.
- The Test to Textualism in King v. Burwell – A Reply to Abbe Gluck—a textual analysis of the PPACA and response to a prominent advocate for the government's position.
- The administration, the IRS, and the ACA: Will the courts rein in the President's pen?—a guest post by Vanderbilt law professor James Blumstein.
- Activist litigation and statutory text: We've seen this one before—a comparison of King v. Burwell and TVA v. Hill.
- Lobbying the Chief Justice (again)—Professor Randy Barnett on the latest effort to sway the Chief Justice in an Obamacare case.
- Have the practical effects of a plaintiffs' victory in King been exaggerated? (And does it matter?)—a discussion of the Consumers Research amicus brief written by Ronald Cass
- Did the IRS engage in reasoned decisionmaking?—a consideration of what the IRS did (and did not do) when issuing the tax credit rule.
- Did the challengers in King really ignore federalism?—a guest post by C. Boyden Gray, Adam White, and Adam Gustafson.
- Good textualism v. bad textualism—an critical examination of the amicus brief filed by law professors on textualism.
If, somehow, all this is not enough, here's the video of my recent Federalist Society debate on the case and here's a link to the amicus brief I co-authored with Michael Cannon. All the other briefs are available here.
Without doubt, there will be more posts on this case to come.
UPDATE: Here are some of the VC's post-argument posts:
- Things we learned in today's oral argument in King v. Burwell—initial reflections on oral argument
- Avoiding constitutional avoidance—Randy Barnett on the constitutional undercurrents raised at oral argument
- Oklahoma's response to Justice Kennedy—What one state AG thinks of the federalism questions
- What happens when we all stare at five words too long?—David Post on the text
- Could King v. Burwell overturn parts of New York v. United States?—considering the implications of some of the federalism arguments raised in defense of the government's position.
- James Blumstein on the King oral argument
- Dana Milbank predicts "social upheaval" if the USSC rules against Obamacare—David Bernstein on Dana Milbank's unintentional self-parody
ADDITIONAL UPDATE (6/19/15):
- Ilya Somin on federalism arguments in King v. Burwell (with additional responses to Rick Hills and Abby Moncrieff)
- Will Baude on the President's options if he loses King (with links to responses)
- New scholarship on King v. Burwell
- How the IRS repeatedly rewrites Obamacare tax credit provisions as documented by UIowa's Andy Grewal (with another example here)
- On the origins of "established by the State" in the Affordable Care Act
- Obama says King v. Burwell is an "easy case" that "probably shouldn't even have been taken up"