Federalism and Silence

The transcript of today’s Supreme Court oral arguments in King v. Burwell are out, and since the legal pundits all seem to still be working on their takes, I’ll just cite two tweets from Jeffrey Toobin that to me seem to sum up what we don’t know, which is probably more important than what we do know:

I strongly suspect some analysts will probably put stock in Kennedy’s discussion of the “doctrine of constitutional avoidance,” which in this case would probably mean construing the statute in a way that does not create a constitutional problem–the kind of “undue burden” on or coercion of states the plaintiff’s construction of ACA suggests. And indeed, it would be a pretty rich irony if the same “federalism” concerns that led to the Court making ACA’s Medicaid expansion optional could save Obamacare subsidies. But as Kennedy himself suggests, his “concerns” could lead himself and the rest of the Court in any number of directions.

I’m inclined to consider Roberts’ silence as ominous, but who knows? Let’s just say the arguments did not create the impression of a Court majority frothing to find anyway to kill Obamacare.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.