Triumph of the leftist will

The Supreme Court held oral argument in King v Burwell yesterday. The Supreme Court has posted the transcript of the oral argument here.

At issue in King is the legality of the IRS’s provision of tax credits in Obamacare exchanges established by the federal government. As Professor Jonathan Adler writes in USA Today, the case “presents a straightforward case of statutory interpretation.” As such, it’s not a hard case; it’s an unbelievably easy case. Professor Adler explains:

The statute is clear on this point. Tax credits are available in exchanges “established by the state,” and the federal government is not a state. Were there any doubt on this point, the law defines “state” to mean one of the 50 states and the District of Columbia. The Department of Health and Human Services is not a state.

So how can the plaintiffs lose this case, as I believe they are likely to do? The closest analogue of this case and its likely outcome — the closest analogue of which I am aware, anyway — seems to me United Steelworkers v. Weber (1979). The oral argument in Weber is posted online here.

In Weber, a white steelworker had sought admission to a craft training program, jointly sponsored by his employer and his union, from which he was excluded by a racial quota. As of the publication of The Color-Blind Constitution in 1992, from which I am borrowing this summary, Andrew Kull believed that Weber presented the strongest “reverse discrimination” challenge ever heard by the Supreme Court because Brian Weber’s precise complaint had seemingly been anticipated, debated and resolved in his favor by the 1964 Civil Rights Act. Professor Kull drily observes: “One specific provision of Title VII might almost have been written to cover the facts of the case.” Like Jonathan Adler, Professor Kull quotes the relevant statutory provision to prove his point:

It shall be an unlawful employment practice for any employer, labor organization, or joint labor-management committee…to discriminate against any individual because of his race, color, religion, sex,or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.

Professor Kull recalls the result, recapitulating the decision more concisely than the Court speaking for itself:

Justice William J. Brennan, writing for a five-to-two majority, could not and did not controvert Justice William H. Rehnquist’s demonstration that Congress in 1964 had intended, by this and other language in Title VII, to prohibit the quota that excluded Brian Weber. His central contention was rather that the color-blind means chosen at the time did not serve the underlying congressional objective, which he identified as the desire to improve the economic position of black workers. It followed that the statute’s true purpose would be served by refusing its enforcement.

Brennan piously intoned the proposition: “It is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Brennan was the keeper of the “spirit,” which was a pure triumph of the leftist will, 1979 edition. In tune with the times, the Supreme Court, I am afraid, stands poised to give us the 2015 edition supporting the gospel according to Barry.

FOOTNOTE: I want to reiterate that to summarize Weber I have drawn directly from Andrew Kull’s The Color-Blind Constitution, one of my all-time favorite books on the law.

Responses