King v. Burwell Tomorrow!

Tomorrow the Supreme Court will hear the King v. Burwell case.  Plaintiffs in this case argue that the Affordable Care Act's language authorizes Federal subsidies for the purchase of health insurance only on State-established health insurance exchanges, not on Federal exchanges established in states that declined to establish their own exchange.  The issue turns on how language in a statute is to be interpreted.

Prof. Laurence Tribe has an editorial on the matter in today's Boston Globe.  Interestingly, he cites a Supreme Court decision from last week, wherein the Court ruled that a fish is not a "tangible object" as that phrase is used in  18 U. S. C. §1519, which is actually part of the Sarbanes-Oxley Act, put in place after the Enron case to help restore trust in financial markets.

In this case, a fisherman was caught for throwing undersized fish overboard ostensibly to destroy evidence of a crime (shameful, for sure!).  The Section of the law in question states more fully,

“Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter..."

Prof. Tribe notes that the majority, with the opinion written by Ruth Bader Ginsburg, declined to interpret a fish as a tangible object -- thereby showing how the language of a statute must be interpreted in the overall context of the statute and the language around the phrase or word in question.

True enough.  But I think Prof. Tribe fails to completely note that Justice Kagan delivered a strong dissent, in which she pretty much argued that the language of the statute is real clear and a fish is clearly a tangible object:

"In my view, conventional tools of statutory construction all lead to a more conventional result: A “tangible object” is an object that’s tangible. I would apply the statute that Congress enacted and affirm the judgment below."

"Apply the statute that Congress enacted.."  Hmmmm.....  and Scalia, Kennedy and Thomas joined with the dissent, making the opposition four.

And while Alito joined the majority, he begins his concurring opinion with,

This case can and should be resolved on narrow grounds. And though the question is close, traditional tools of statutory construction confirm that John Yates has the better of the argument. Three features of 18 U. S. C. §1519 stand out to me: the statute’s list of nouns, its list of verbs, and its title. Although perhaps none of these features by itself would tip the case in favor of Yates, the three combined do so.

Note the phrase, "...the question is close."  Four plus one makes a majority.

In my humble opinion, the same applies to King v. Burwell.  The question is indeed close.