Obama's curious take on ObamaCare case and Supreme Court docket
© Greg Nash

President Obama last week opined that the Supreme Court "probably shouldn't even have  ... taken up" King v. Burwell, the case that brings before the high court the question of whether the ObamaCare tax credit applies in states that have opted not to create their own healthcare exchanges. On reflection, however, the president's argument does not hold water. The case meets the criteria for the court to have granted certiorari (a decision that in any event lies within the court's sound discretion) and the administration's own arguments to the court belie the president's description of the case as "easy."

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One possible interpretation of the president's comments is that the Supreme Court's decision to hear the case was wrong because there was no circuit split — that is, no division among the lower courts on the question at issue. But the issue of lower federal court division on the ObamaCare issue is complicated, and in any event does not mean that the court's grant of certiorari was erroneous. The Supreme Court's rules make clear that the existence or absence of a circuit split does not control whether certiorari will be granted. Even if there were no circuit split at the time the court granted certiorari, it still is fair to say that the lower courts have divided on the ObamaCare issue. A circuit split between the Fourth and District of Columbia Circuits disappeared only because the D.C. Circuit grant of en banc review technically vacated the D.C. Circuit panel opinion that gave rise to the split. And a federal district court has reached a result contrary to the result reached by the Fourth Circuit in the King case.

Even if the absence of a circuit split were somehow seen to preclude Supreme Court review, the Supreme Court's rules offer as an additional, independent basis for granting certiorari the idea that "a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this [c]ourt." It is clear that the availability of the tax credit in states that have not set up exchanges is a critically important question of federal law. Because the penalty applies to people who could afford insurance but don't get it — and because statutorily the cost of insurance is deemed to be reduced by the tax credit (if applicable) — the availability of the tax credit vastly expands the number of uninsured subject to penalty if they fail to obtain insurance. The availability of the tax credit also affects the scope of the ObamaCare employer mandate, insofar as the law penalizes large employers that fail to provide health insurance such that at least one employee enrolls in a healthcare plan for which a tax credit is available. Indeed, the solicitor general's brief to the Supreme Court in King argues that subjecting the ObamaCare statute to the plaintiff's proposed interpretation would render the statutory scheme "self-annihilating." It is hard to imagine a more important question of federal law than one that will determine the ultimate success of the federal government's attempt to provide health insurance to millions of uninsured Americans.

But Obama’s statement goes well beyond the absence of a circuit split: The president asserts that the court "should not have ... taken up" the issue in King because it is an "easy case." This assertion is quite puzzling, since the prevailing position on the Virginia federal appeals court in King was that the language of the ObamaCare statute was ambiguous, and so the IRS's interpretation of the statute was entitled to deference under the so-called Chevron doctrine. Yet the solicitor general's brief to the Supreme Court in King advances this argument only as a secondary, backup argument to the primary argument that the language of the statute unambiguously mandates the IRS's interpretation. If the case is indeed as "easy" as Obama suggests, why is his solicitor general arguing in favor of a position that the lower court did not embrace — and indeed a position accepted by only one of the six federal appellate judges to have ruled on the issue?

There is an answer to this question. As I have explained in an earlier column in the wake of the two federal appeals court decisions, a decision "in favor" of the government on Chevron grounds really is only a narrow victory for the Obama administration; a future administration would be free to change the governing interpretation and thus put ObamaCare in jeopardy. It thus is understandable that Obama would prefer it if the Supreme Court were to make its ruling — unlike the lower court — without relying on Chevron. But this also means that the case is not as "easy" as Obama suggests.

In short, King hardly falls outside the realm of cases in which the Supreme Court typically grants certiorari. Nor does it seem fair to characterize it as an "easy" case. Perhaps, as has been suggested, the president is trying to use his arguments less to question the Supreme Court's hearing of the case, and more to try to influence the outcome. Be that as it may, King is good and proper fodder for the court, the president's comments notwithstanding.

Nash is professor of law and David J. Bederman Research Professor (2014-15) at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on Twitter @JonathanRNash.