According to the doctrine of constitutional avoidance, the court should seek to interpret a statute in order to avoid a constitutional question.
In my previous posts on King v. Burwell
, I addressed the statutory interpretation
of the text of the Affordable Care Act and the impact of Chevron deference
on the case. In this post, I will review what may be the argument that is most appealing to the conservative justices of the court which would lead to a favorable result for the government, the doctrine of constitutional avoidance to avoid a federalism issue—specifically the Pennhurst doctrine
The argument is well presented in the amicus brief (PDF) of 22 states urging the upholding of the IRS rule that provides that the tax credit subsidies of Section 36(b) of the tax code, promulgated by ACA, are available on the federal exchanges. Let's start with the doctrine of constitutional avoidance. The State amici argue:
“A statute should be interpreted in a way that avoids placing its constitutionality in doubt.”[cite omitted] The constitutional-doubt canon “militates against not only those interpretations that would render the statute unconstitutional but also those that would even raise serious questions of constitutionality.” [cite omitted]
This is an uncontroversial observation. So what is the "constitutional infirmity" that the challengers' argument presents? It is the Pennhurst doctrine
. The amici
When Congress enacts cooperative-federalism programs, the States are entitled to clear notice about the conditions to which they have agreed. [cite omitted] The Court in Pennhurst State School & Hospital v. Halderman [cite omitted] described that clear-statement rule this way:
[L]egislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract.” There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation. [Cite omitted.]
So there are the doctrines of constitutional avoidance and the constitutional infirmity that are implicated in King
. Where do the arguments take us? I'll explore on the flip.
The basic thrust of the amici argument is that the challengers' proposed interpretation of Section 36(b) would violate the clear notice requirement of Pennhurst:
Conspicuously absent from the Amici States’ deliberations was any notion that choosing [a federal exchange] would deprive citizens of tax credits. [...] The deliberations of the Amici States that decided to create their own Exchanges make equally clear that their decisions were not based on tax-credit availability. If Petitioners were right, depriving citizens of tax credits would have been the overwhelming factor warranting a State-based Exchange. But the States instead mentioned other reasons for their decision. [...]
[T]he evidence [...] shows that Amici States here, and officials in nearly every State, lacked any notice, let alone clear notice, that adopting [a federal exchange] would deprive citizens of billions in subsidies and destabilize State insurance markets. [...] From “the perspective of a state official, there was nothing in the text, structure, purpose or history
of the ACA to give them clear notice of Petitioners’ interpretation. [...] [I]solated phrases fail Pennhurst’s clear-notice test. For starters, Congress does not “hide elephants in mouseholes.” [cite omitted] It is unreasonable to expect State officials to have found clear notice of Congress’s supposed threat in obscure subsubsections of the tax code pertaining to the calculation of an individual’s tax credit. [. . . ] State officials reviewing § 36B therefore would have had no sensible reason to conclude, let alone clear notice, that the two occurrences of “established by the State” had the far-reaching effect Petitioners assert.
In an another amici
brief, a group of law professors argue that even if there were clear notice regarding Section 36(b), there was no clear notice of an intention to alter the federal state balance. Relying on the recently decided case Bond v. United States
, the amici brief
Amici wish to draw the Court’s attention, however, to a different aspect of this case. This Court has found that doctrines designed to preserve and protect the federalist structure established by the Constitution can and should have a significant impact on the interpretation of federal statutes. In particular, “it is incumbent upon the federal courts to be certain of Congress’ intent before finding that [a] federal law . . . overrides the usual constitutional balance of federal and state powers.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) [. . .]
Thus, according to this argument, the court must be certain of Congress's intent
to embrace the interpretation urged by the challengers. The amici
discuss the 2014 Bond
case to buttress this point:
The Court explained just last Term that “Congress legislates against the backdrop of certain unexpressed presumptions,” among which are “those grounded in the relationship between the Federal Government and the States.” Bond v. United States,
134 S. Ct. 2077, 2088 (2014) (internal quotation marks omitted). Therefore, as the Court has repeatedly held, “it is incumbent upon the federal courts to be certain of Congress’ intent before finding that federal law overrides . . . the usual constitutional balance of federal and state powers.” [...]
Just last Term, in Bond, 134 S. Ct. at 2090, the Court rejected a broad construction of a chemical weapons statute because it “does not constitute a clear statement that Congress meant the statute to reach local criminal conduct.”
The amici argue the intent of Congress was in fact the opposite of what the challengers argue:
This Court’s federalism cases establish that the Court should not assume Congress has enacted a program in which States are put to a choice with those kinds of drastic consequences unless there is “certain[ty]" that Congress intended it. Gregory, 501 U.S.at 460. When the Act is read as a whole, such clarity is absent here.
Putting all these arguments together, the doctrine of constitutional avoidance would lead the court to avoid the challengers' interpretation. To do otherwise would create constitutional questions the doctrine of constitutional avoidance dictates the court should avoid.
But we all know the court will do whatever it wants.
Tomorrow: a preview of oral argument and what to look for.