King v. Burwellthe challenge to the Affordable Care Act that the Supreme Court will hear on March 4this about more than health care. Court watchers have finally begun to realize that the case is also all about states rights. And while the challengers have tried to submerge this issuebecause it dramatically undermines their caseits centrality to King has become undeniable.
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The case is about federalismthe role of states in our national democracy. The reason the challengers dont want anyone to realize that is because the very text-oriented justices to whom they are appealing are the exact same justices who have consistently interpreted federal laws to protect states rights. And the challengers would read the ACA in the opposite wayas having devastating implications for the states.
The challengers interpretation turns Congresss entire philosophy of states rights in the ACA upside down. Congress designed the exchanges to be state-deferentialto give the states a choice. But under the state-penalizing reading that challengers urge, the ACAa statute that uses the phrase state flexibility five timeswould be the most draconian modern statute ever enacted by the U.S. Congress that included a role for the states. Whats more, if interpreted as the challengers hope, the ACA would have been debated, enacted and implemented for two whole years under intense public scrutiny, including the scrutiny trained on it during the last major constitutional challenge in the Supreme Court in 2012, without anyoneno state, congressman or bloggernoticing these consequences or objecting to them.
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Yes, protection of states rights is most often associated with the conservative movement. But it shouldnt matter that the Courts federalism rules support the government this time around. If these states rights rules are real and objective rules of law, they should apply regardless of whose side they happen to serve.
The Supreme Court, led by its conservatives, has spent the past four decades developing a set of legal rules to protect states from federal imposition. Those rules require Congress to provide unmistakably clear notice in the text of a statute before the Court will read a statute to intrude on the states. As read by the challengers, the ACA would completely violate these Court doctrines.
In fact, these very same state-protective rules were used by those who challenged the ACA in 2012as well as by seven Justices in that case when they concluded the ACAs Medicaid expansion was impermissibly coercive on the states. It is thus remarkable that the King challengersformerly staunch federalistshave suddenly adopted an interpretation of the law diametrically at odds with these protections. They do not mention these flagship cases in their briefs, even though the consequences that their reading would impose on the states are far more intrusiveand come with no explicit warning in the statutethan those at issue in Medicaid expansion.
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Finally, the King challengers fail to acknowledge that the ACA has a provision that expressly lays out the consequences to states of not operating their own exchangesa provision that, unlike the buried tax provision directed to individuals on which challengers rely, couldnt be more clearly signposted to give the requisite notice to the states. That provision is entitled Failure to establish Exchange or implement requirements, and it spells out what happens if states do not operate their own exchanges. The penalty the challengers would foist on the statesthe loss of the subsidies and drastic consequences that would go with itdoes not appear there, where it should appear if it existed.
Those who take the governments side in this case will inevitably be called fair weather federalists, even though the state attorneys general and academics making these arguments to the Court espoused these same federalist principles long before the ACA existed. The real fair-weather federalists are those who have spent decades working to entrench these doctrinal protections for the states, who fought for them successfully in the 2012 case, and who nowin their zeal to destroy the ACAare content to push those doctrines under the rug this time around. These King supporters are willing to let their contrived reading of the ACA set up what appears to be the greatest federalism trap for state governments in history. If the Courts federalism doctrines stand for anything, they will not stand for this.