Justice Kennedy’s testimony about gridlock harkens back to Obamacare case

Justice Kennedy made an interesting comment today when he testified to Congress regarding the Supreme Court’s budget. Responding to a question about politically charged issues before the Court, Kennedy stated:

We think an efficient, responsive legislation and executive branch in the political system will alleviate some of that pressure. We routinely decide cases involving federal statutes and we say, well, if this is wrong the Congress will fix it.

But then we hear that Congress can’t pass a bill one way or the other. That there is gridlock.

SOME PEOPLE SAY THAT SHOULD AFFECT THE WAY WE INTERPRET THE STATUTES. THAT SEEMS TO ME A WRONG PROPOSITION. WE HAVE TO ASSUME THAT WE HAVE THREE FULLY FUNCTIONING BRANCHES OF THE GOVERNMENT, GOVERNMENT THAT ARE COMMITTED TO PROCEED IN GOOD FAITH AND WITH GOOD WILL TOWARD ONE ANOTHER TO RESOLVE THE PROBLEMS OF THIS REPUBLIC.

(Emphasis added.)

Law professor Josh Blackman ties this statement to an exchange that occurred during oral argument in King v. Burwell, the case which calls on the Court to decide whether Obamacare provides for subsidies in the federal exchange. Addressing the possibility that, if the Court finds such subsidies not provided for, Congress could “fix” Obamacare by mandating them, the government’s attorney (Solicitor General David Verilli) argued that “this Congress” would not make this fix.

Here is the exchange:

JUSTICE SCALIA: What about ­­ what about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue.

I mean, how often have we come out with a decision such as the you know, the bankruptcy court decision? Congress adjusts, enacts a statute that takes care of the problem. It happens all the time. Why is that not going to happen here?

GENERAL VERRILLI: Well, this Congress, Your Honor, I ­­ ­­

(Laughter.)

You know, I mean, of course, theoretically ­­ of course, theoretically they could.

JUSTICE SCALIA: I don’t care what Congress you’re talking about. If the consequences are as disastrous as you say, so many million people without insurance and what not, yes, I think this Congress would act.

It’s likely, I think, that Justice Kennedy’s testified as he did today at least in part with King v. Burwell in mind. But that doesn’t mean Kennedy signaled an intention (or an inclination) to vote in favor of the plaintiffs, who are challenging the grant of subsidies in the federal exchange. At most, it signals that Kennedy wouldn’t reject that result out of fear of that millions will lose their insurance and Congress won’t do anything about it.

During oral argument, Kennedy signaled a concern that might cause him to vote in favor of the government. His concern was that a statute that would potentially destroy the insurance system in states that chose not to establish their own exchanges –- namely the Obamacare statute construed as not providing subsidies in the federal exchange — might amount to an unconstitutional attempt to coerce states to establish exchanges.

Kennedy’s expression of this concern led to speculation that he might strain to construe Obamacare as not “coercing” the states to establish exchanges, and therefore not withholding subsidies to residents of states that opt not to have exchanges. I discussed this matter here and here.

Kennedy’s testimony today about the Court’s presumption that Congress will act to fix major problems does not pertain to the concern he expressed during oral argument. The testimony is interesting, but when it comes to forecasting the outcome of King v. Burwell, I wouldn’t read much into it

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