The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Debating King v. Burwell (with comments on Krugman)


Friday's welcome-but-unexpected grant in King v. Burwell has already produced a flurry of commentary—some of it substantive, some not so much.

In the former category, SCOTUSBlog is hosting a mini-symposium on the case, my own contribution to which is here. (Regular VC readers will recognize many of the arguments.) Other contributors, thus far, include Nicholas Bagley and Abbe Gluck, two of the more thoughtful folks on other side of this case. More will follow. SCOTUSBlog will post links to the contributions, and relevant case materials, here. (For a more comprehensive collection of King-related materials, see here and here.)

The debates are not only online. Tuesday I'll be in New Haven to debate Professor Gluck at Yale Law School. Linda Greenhouse will moderate. For those unable to attend, here's my October debate with Professor Bagley and my panel at the recent Cato forum at which Jim Blumstein and I crossed swords with Brianne Gorod and David Ziff.

One problem with debating and discussing the issue in King is that many folks (pundits, bloggers, etc.) have very strong views about questions they clearly do not understand. Things that seem obvious to one side or the other are often wrong or legally irrelevant. People that are otherwise expert on health care policy become enamored with arguments that don't actually prove their case because they are not responsive to the other side's claims. For instance, those Gruber videos are fun, and make a point, but they don't prove the plaintiffs are correct on the merits. Professor Ziff, with whom I disagree on the underlying issue, had a thoughtful post on this problem that advocates on both sides would do well to consider.

For an example of someone making arguments that are not nearly as strong as he thinks they are it would be hard to do better than Paul Krugman's most recent column. In this piece, Krugman makes basic mistakes—e.g. the plaintiffs' case is not based on just "one clause" in the statute—and insists that only an "incredibly hostile reader" could read "established by the State" to mean, well, "established by the State." This would be news to the folks at CRS or those at the IRS who initially drafted implementing regs that tracked the statutory language. Even some folks on Krugman's side have conceded that the statute's words "clearly say" credits are only authorized in state-established exchanges, even if they believe this is "what Congress clearly did not mean."

The one appellate court to agree with Krugman conceded "there is a certain sense to the plaintiffs' position." Yet, according to Krugman, only those who are "hostile" and "corrupt" could reach such a conclusion. In ruling for the government, the panel majority in King concluded "the defendants have the stronger position, although only slightly," and ultimately held for the government because it found the statutory language sufficiently ambiguous to support the IRS rule as a reasonable interpretation. I find the Fourth Circuit's opinion reasonable but unconvincing. See this post for some of the reasons why the Fourth Circuit was wrong (or see my co-authored amicus brief for the Halbig en banc). There are serious arguments here on both sides, but Krugman can't see them.

According to Krugman, the claim in King is based upon an "obvious typo." In other words, Krugman thinks this is a case of sloppy legislative drafting that should be corrected by the courts. This is a popular argument among pundits, but it's not made by the government or more knowledgeable legal experts—and for good reason: It's a weak argument. In order for the government to prevail in arguing that a statute does not mean what the plain text says—that, there is a "scrivener's error" or a statute would produce "absurd results"—the government has to show that there is no conceivable possibility that the text was deliberate. For reasons I explained years ago (literally) this argument fails, as most thoughtful commentators on the other side have conceded. The government's strongest argument is not that there is a typo, but that the entire statute, construed as a whole, allows for what the IRS did, even if only because the text is sufficiently ambiguous to allow for the IRS's interpretation.

Rhetorically, the column is also a bit unhinged. Krugman writes that any judge who adopts a traditional textualist approach to interpretation and thus sides with the plaintiffs is "corrupt." So Judge Thomas Griffith of the U.S. Court of Appeals for the D.C. Circuit, who when nominated was praised for his fair-mindedness and moderate temperament by folks on both sides of the aisle, is tarred with this brush because he found the plaintiffs arguments convincing and wrote the D.C. Circuit's Halbig opinion. Never mind that he applied the same interpretive method he had used in prior cases. In Sierra Club v. EPA, for instance, Griffith ruled against the Bush EPA because it failed to adhere to the text of the Clean Air Act. In Sierra Club, as in many statutory cases, one word ("each") made all the difference.

Krugman's column illustrates contemporary punditry can distort what is actually a serious legal debate (much like how some conservative commentary distorts the serious arguments in favor of the president's authority to act unilaterally on immigration). The arguments that make for good op-eds don't necessarily make for good legal advocacy. If Krugman wants to actually advance his side's argument (rather than just vent his spleen), he should really read the Ziff post above and take legal argument seriously. Alternatively, he could stick to subjects upon which he's actually an expert.