Linda Greenhouse’s Blatant Effort to Invoke “Greenhouse Effect” in Affordable Care Act Case Fails

NYTMark S. Chenoweth, WLF’s General Counsel, contributed to this post

Linda Greenhouse is at it again. The New York Times Supreme Court reporter-turned-opinion writer is deeply troubled by the possibility that the Supreme Court may actually construe the Affordable Care Act precisely as Congress wrote it. And she is up to her old tricks of trying to influence the justices by suggesting that they “will have a great deal of explaining to do—not to me, but to history” if they strike down the proposed IRS rule at issue in the case.

Now that the Supreme Court has agreed to decide the proper scope of tax credits available under the law, Ms. Greenhouse laments, “[n]ot only the Affordable Care Act but the court itself is in peril as a result.” Chief Justice Roberts, by her lights, “saved the day” last time around. “The fate of the statute hung in the balance then and hangs in the balance today,” she continues, but “… [t]his time, so does the honor of the Supreme Court.”

And yet King v. Burwell is precisely the sort of case that the Supreme Court is supposed to decide. Not only does it raise an issue of exceptional importance—whether the IRS is permitted to appropriate billions of dollars in tax credits each year absent an express authorization from Congress to do so—but the Fourth and D.C. Circuits have issued conflicting decisions on that question, and only the Supreme Court can resolve such a conflict.

Although the text of the ACA couldn’t be any clearer that only those taxpayers who purchase health insurance on exchanges “established by a State” are entitled to subsidies in the form of a tax credit, Ms. Greenhouse argues that the law’s “context” points in the opposite direction. But even if the law is ambiguous, Ms. Greenhouse strenuously avoids addressing the overriding reason for any ambiguity—the ACA was the sloppiest piece of legislative draftsmanship in a generation or more.

Cobbled together in secret, the final version of the sprawling 2,700-page bill was unveiled and quickly rushed to the Senate floor for a vote on Christmas Eve, 2009.   The ACA passed the Senate on a straight party-line vote, without a committee hearing, without a committee report, and on the basis of such brazen backroom dealings as “the Cornhusker Kickback” and “the Louisiana Purchase.” Then-Speaker of the House Nancy Pelosi ushered the Senate bill through the House under the reconciliation process, famously observing that Congress had “to pass the bill so that you can find out what is in it.” As a result, the House of Representatives flipped control in the next election; some 30 senators who voted for it have left the Senate. Given the haste with which they acted, lawmakers who now conveniently claim that the letter of the law doesn’t reflect their understanding of what they voted for deserve someone somewhere to play them the world’s smallest violin.

Ms. Greenhouse may be right that, in the face of statutory ambiguity (whether it arises from sloppy drafting or otherwise), the justices “actually all agree on how to interpret statutory text.” But she neglects to mention that courts also routinely rely on well-settled canons of statutory construction to guide them, and there exists fairly wide agreement on those. Unfortunately for her, then, the statutory interpretation canon most apposite in this case requires all tax credits to be expressed in clear and unambiguous terms—which eliminates altogether the IRS’s discretion to resolve any ambiguity that may exist.

Given Congress’s undisputed role as the guardian of the public fisc, tax credits are “matters of legislative grace,” which must be strictly construed. Hence, if any ambiguity remains, it must be resolved against the existence of a tax credit. This was precisely the argument advanced by Washington Legal Foundation and Prof. Steven Willis in our amicus brief. Having for years relied on the legislative grace canon again and again to deny taxpayers deductions, credits, and exemptions whenever it is unclear that the language of the tax code permits them, the IRS should not be permitted to so easily avoid its operation against the IRS’s proposed ACA implementation rule in this case.

Greenhouse also mentions favorably a “fascinating brief filed in support of the government by an unusual coalition of 23 red-state and blue-state attorneys general.” Note her odd locution, and do not be fooled. Greenhouse implies that the coalition is unusual and thus bipartisan. It is not, or barely so at best. North Dakota Attorney General Wayne Stenehjem is the sole red-stater to sign onto the brief, and his office started backing away from it earlier this week before Greenhouse’s piece ran. There is nothing unusual about the other 22 blue-state attorneys-general joining forces.

Moreover, she ignores the brief six red-state attorneys-general filed on the opposite side of the case, refuting the claim that striking down subsidies for federal exchanges would surprise the States. To the contrary, States made their decisions on whether to set up state exchanges knowing that the issue now before the Court was lurking. So any “surprise” cuts equally against those States that carefully chose not to set up their own exchanges in anticipation that the Supreme Court might reach the very result it is being asked to reach in the case now before it.

The headline of Greenhouse’s piece would have readers believe that “Overturning Obamacare Would Change the Nature of the Supreme Court.” That was not true last time around, and it is certainly not true here. Rather, a decision affirming Congressional power over the public fisc would simply preserve the status quo when it comes to the Constitutional separation of power. And when it comes to the blatant effort to invoke the Greenhouse Effect, the argument that the Court’s honor is at stake is just a bunch of hot air.

Also published by Forbes.com at WLF’s contributor page

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