Sohoni on King v. Burwell

Mila Sohoni (San Diego) has a thoughtful new essay at the Yale Journal on Regulation Online about the Supreme Court's forthcoming decision on Obamacare. She responds to Justice Kennedy's apparent concern at oral argument that threatening the states with the loss of tax credits for their citizens--and the destruction of their individual insurance markets--would be unconstitutionally coercive under the Tenth Amendment:  “the states are being told either create your own exchange, or we’ll send your insurance market into a death spiral.” Some have speculated that Kennedy may use the canon of constitutional avoidance—a doctrine that allows the court to read a statute to avoid reaching a difficult constitutional question—to resolve the case in the government’s favor.

 

Sohoni argues that the Court should avoid using the doctrine of constitutional avoidance for such novel questions unless the Court has first "exhausted other tools of statutory interpretation."  Otherwise, the Court may unnecessarily "manufacture new doubts" about Congress’ spending power and its relationship to the states.  

 

As it happens, Sohoni observes, the Court can rely on another tool of statutory interpretation, the “clear statement” rule, to reach the same result without the same adverse consequences. That doctrine—apparent in cases like Pennhurst, Gregory, Bond, and Gonzales— already requires Congress to speak in unmistakable terms before imposing onerous requirements on states. By relying on the “clear statement” rule, however, the Court can avoid sending state insurance markets into a “death spiral” without raising new questions about our federalism. 

 

Sohoni's arguments about King v. Burwell echo a growing chorus of concerns raised by other prominent commentators in administrative law, like Thomas Merrill, Gillian Metzger, Nicholas Bagley and Abbe Gluck. But her essay also adds to the long debate about whether and how tools of statutory construction matter.  Compare Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401-06 (1950)(it is a “foolish pretense” for courts to justify their statutory constructions based on “a set of mutually contradictory rules on How to Construe a Statute.”) with Cass R. Sunstein, Is the Clean Air Act Unconstitutional?, 98 Mich. L. Rev. 303, 359 (1999) (“[T]he clear statement principles are a paradigmatic form of ‘democracy-promoting minimalism.’ They reflect a cautious judicial role, one that does not preempt democratic processes but instead attempts to fortify them, by ensuring that certain sensitive questions receive explicit and sustained attention from the national legislature.”).  See also Anita S. Krishnakumar, Dueling Canons, 65 Duke L.J. _ (forthcoming 2016). 

 

Even when the outcome looks the same, Sohoni illustrates how the Supreme Court's particular choice of a statutory interpretation can have dramatic collateral consequences on the way Congress interacts with states and their citizens.