The Volokh Conspiracy

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Volokh Conspiracy

The Endgame in King v. Burwell


Many people have assumed that the Supreme Court's decision to grant cert. in King v. Burwell in the absence of a circuit split means that the government is likely to lose the case. If so, one big question that comes up is how much time the federal government and the states are likely to be given to deal with the ruling before it takes effect.

Nick Bagley has a pair of good posts about this. In the first, he argues that the Supreme Court would not grant the government any kind of a stay. In the second, he qualifies his view very slightly in response to some comments from me and Andy Grewal, though the "bottom line stands: it's very unlikely that any stay will issue from the Court."

I think this assessment may well be right. But the bigger lesson here is that the time to be thinking about these remedial questions is now. If the government goes into the litigation at the Court with a specific fallback plan, there's at least a small possibility of getting it; if they don't ask, there's no chance. Similarly, pro-subsidy folks in states with a federal exchange could be lobbying their state now to establish their own exchange and maintain their line to the federal funds. It's dangerous to wait until June and suddenly start scrambling.

Now of course none of this is necessarily to say that the merits of King should be taken to be a foregone conclusion—the proper interpretation of the statute is still to be hashed out in Court and is of course much debated on the internet. It's just to say that it's wise to think about these procedural issues now, and I'm glad Nick is pushing that conversation along.