Ed Whelan Ignoring Context

When it comes to the Affordable Care Act and evidence about what it means, opponents of the ACA have made a habit of only seeing what they want to see.  The latest example is Ed Whelan’s response to Linda Greenhouse’s most recent column about King v. Burwell, the case about the nationwide availability of tax credits under the ACA that the Supreme Court will be hearing next month.

In her column, Greenhouse urged those who might be concerned that the Court is going to play politics with the ACA to “read the briefs” filed in support of the government.  As she explained, those briefs make an overwhelmingly powerful case about not only why the government’s reading of the law is the right one, but also why that reading should prevail even with a very conservative Court.  “To reject the government’s defense of the law,” she wrote, “the justices would have to suspend their own settled approach to statutory interpretation as well as their often-stated view of how Congress should act toward the states.”

In response, Ed Whelan makes two points.  First, he criticizes her for noting that the “Supreme Court ‘has permitted itself to be recruited into the front lines of a partisan war’” that puts its reputation on the line, saying that he thinks “this rhetoric far better describes what is at issue in the cases challenging state marriage laws.”  But he ignores all of the reasons that it made far more sense for the Court to hear a marriage case than King, not the least of which is that there was a split among the lower courts on marriage by the time the Court agreed to hear one of those cases.  (Greenhouse notes in her column that “the plaintiffs’ appeal [in King] didn’t meet the normal criteria for Supreme Court review.”)  Moreover, there’s abundant evidence to support Greenhouse’s assertion that King is part of a partisan war against the ACA, as this post explains.  Indeed, the plaintiffs’ own lawyers have made clear that they’re counting on politics to help them carry the day at the Court. 

Second, Whelan faults Greenhouse for stating that the Justices agree on how to interpret statutory text when “all that [she] means . . . is the trivial proposition that ‘[e]very justice subscribes to the notion that statutory language has to be understood in context.”  He says she “seems not to recognize that the line between properly considering context and improperly smuggling considerations of supposed purpose into the context inquiry is very much in dispute.”  But he seems not to recognize – perhaps he did not heed her advice and read the briefs filed in support of the government – that simply looking at the context supplied by text is sufficient to win the day for the government in King.  As Greenhouse explains briefly and the government’s brief explains in great depth, the text of the ACA as a whole makes clear that eligibility for the tax credits turns on income, not state of residence, and the four words on which the law’s challengers rely do nothing to change that.

But what’s most galling about Ed Whelan’s response to Greenhouse’s column is how much of it he does not respond to, or even acknowledge at all.  Even though the text is all the government needs to win this case, it’s not all it has, as Greenhouse explains.  To start, as she explains, “no one in a position of power appears to have believed at the time [the law was passed] that the law” limited tax credits to state-run Exchanges.  The members of Congress who passed the law and the members of state legislatures who participated in implementation debates in their states make that case powerfully in an amicus brief filed by the Constitutional Accountability Center.  And as Greenhouse notes, prominent Republicans believed it as well.

Moreover, Greenhouse discusses an important amicus brief filed by Virginia on behalf of “an unusual coalition of 23 red-state and blue-state attorneys general” that explains that “the challengers’ narrative would ‘violate basic principles of cooperative federalism by surprising the states with a dramatic hidden consequence of their exchange election.’”  That result should be a problem for Justices who are concerned about federalism and protecting the states.

Finally, Greenhouse notes that briefs were filed in support of the government by “small business owners” and “the health care industry”; the former is significant, she notes, because an earlier constitutional challenge to the ACA was brought by a small-business federation.  These briefs not only make clear how significant the consequences of an adverse ruling will be for patients and the health care industry, but also why Congress would never have written the law to operate in the way the law’s challengers now say that it does.

All of these reasons lead Greenhouse to conclude that a ruling against the government would impair the “honor of the Supreme Court”—but also give her hope that the Supreme Court won’t do that.  Ed Whelan ignored all of this discussion in his post.  So Ed Whelan may think that Greenhouse “[c]onfused [c]ontext,” but he seems to have simply ignored it.