The Volokh Conspiracy

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Debating Halbig & King


On September 30, I drove up to Ann Arbor for the "Thrilla in Ann Arbor," a debate with the University of Michigan's Nicholas Bagley on legality of the IRS rule authorizing tax credits in federal exchanges at issue in Halbig v. Burwell, King v. Burwell, and other cases. Somewhat coincidentally, a federal district court in Oklahoma struck down the IRS rule the morning of our debate.

I don't know whether either of us changed any minds, but I believe we had a serious and substantive exchange that focused on the real issues in these cases, and largely sidestepped the detritus that fills much commentary on the litigation. But don't take my word for it. Here's a video of the event. You can also read Prof. Bagley's account and Michigan's write-up of the event.

This was not my first debate on Halbig and King, and it won't be the last. I'm currently scheduled to debate Professor Abigail Moncrieff at BU (Oct. 16) and the CAC's Simon Lazarus at an AHLA conference (Oct. 20). I'll be on a panel discussing these cases with Professor Abbe Gluck and Linda Greenhouse at Yale (Nov. 11) and will speak on these cases and ACA implementation before the Federalist Society's Pittsburgh Lawyers Chapter too (Nov. 19).

In other Halbig news, en banc rehearing plaintiff-side briefs were due last Friday. The plaintiffs' brief is here. My amicus with Michael Cannon is available here (and excerpted here). Other amicus briefs supporting the petitioners can be found here. Additional materials on the underlying issues and lawsuits are here.

In King news, on Friday the federal government filed its brief in opposition to the plaintiffs' petition for certiorari before the Supreme Court. Conspicuously absent from this brief is any mention of MIT economist Jonathan Gruber. The federal government routinely cited his work in its prior briefs in both Halbig and King, but not here. The Court is scheduled to consider the King cert petition in November.