HH: As promised, time to go over some of the lawsuits that have been piling up of enormous significance. John Eastman is not with us today, so it’s not really the Smart Guys. Though Dean Erwin Chemerinsky of the University of California Law School at Irvine is with me. The Dean is however joined by my friend, Matt Bowman, who is senior litigation counsel with Alliance Defending Freedom, who is one of the counsel of record in Hobby Lobby, and of course very familiar with both the ACA cases, Obamacare cases, and the marriage cases. Welcome to you both, Matt and Erwin. Dean, let me start with you. Would you give summaries, I don’t know which order we’ll end up doing, DeBoer and King V. Burwell, the first the marriage case, the second, the ACA case. But would you give summaries of both?
EC: Sure. In terms of the 6th Circuit case, last Thursday, the United States Court of Appeals for the 6th Circuit in a 2-1 decision upheld the laws in four states that prohibited marriage equality. Judge Jeffrey Sutton wrote the majority, Judge Martha Daughtrey wrote the dissent. Judge Sutton’s majority emphasized the need to leave this matter to the political process, and he said that states have a legitimate interest in preventing same sex couples from being able to marry. The other case is King V. Burwell. The Supreme Court granted review on Friday. This involves a provision of the Affordable Care Act. The Affordable Care Act says that if a person purchases insurance from a state-established exchange, and qualifies financially, there will be a tax credit. The law calls on states to create these exchanges, but it says if the states don’t do so, then the federal government can come in and create an exchange. I think it’s at this point 16 states have created exchanges. So in 34 states, it’s the federal government that’s created the exchange. And the question is if a person buys insurance on one of these exchanges created by the federal government, do they still get the tax credit? The IRS says yes. The challengers say no. The 4th Circuit sided with the IRS. And that’s where the Supreme Court granted review.
HH: Now Matt Bowman, Alliance Defending Freedom, are you counsel of record in either of these cases, any of these matters?
HH: Okay, so what’s your take? Let’s start with the Obamacare case, the ACA case, the Affordable Care Act case. What’s your take on King V. Burwell, and what will drive that argument before the Court?
MB: Ultimately, the question here is whether the executive branch can take what a statute says and say well, that just doesn’t really work, we’re just going to do something different than what the statute actually says, whether bureaucrats in Washington can decide that we know what Obamacare should do better than the statute itself knows, and so we’re just going to do that, because we think it wouldn’t work otherwise.
HH: And how widely watched do you expect this opinion to be, and how closely monitored the result?
MB: It’s extremely important. The fact that the Court took the case was a surprise to a lot of people. This really is the second round of, arguably, also the third, of the Court’s attempt to tackle Obamacare and all the different questions it raises about whether executive power can ultimately impinge on the rights of citizens.
HH: The second round being Hobby Lobby?
MB: Exactly, and the first round being the individual mandate case from the previous years.
HH: So Erwin, what do you make of Matt Bowman’s assessment of this as to what’s at stake here, whether or not bureaucrats can rewrite laws when they want to?
EC: That’s of course how the challengers are characterizing this. That’s how two judges in the D.C. Circuit saw it. On the other hand, the argument is that the Supreme Court long has said that statutory provisions need to be interpreted in light of their context and purpose. Congress’ clear purpose here was that those who financially qualify, who purchase insurance from an exchange, should be able to get the tax credit. Congress provided that if the state doesn’t create the exchange, the federal government can do so. It makes no sense to allow a state that chooses not to create an exchange to deny the tax credit to its citizens. So what you’ve got here is the challengers are saying look, the plain language, it’s a state-established exchange. The defenders of the IRS are saying but you interpret a statute in light of its context and purpose. Not surprisingly, this corresponds to the political views of the challengers and those defending the law.
HH: Matt Bowman, do you agree with that assessment, this is just going to be a, do you support Obamacare, or do you hate Obamacare case? Or does it go to the role of the courts in supervising statutory interpretation and construction that is done by the executive branch unilaterally?
MB: Well, I would quibble with the Dean a little bit. This is not a question of plain meaning versus context. Both sides say that the context and the purpose of the statute matters. And the challengers simply say that you can’t negate what a statute says on the basis of context. They actually say that the context and the purpose of the statute is consistent with what the statute says. And ultimately here, the question is if Congress, if the people through Congress pass a law, and that’s what it says, can the executive branch simply undo what the statute says because they think it doesn’t work properly that way? I think people are ultimately confusing the question of statutory interpretation with the more fundamental issue of the unworkability of Obamacare, which you can’t negate what a statute says just because you think the statute doesn’t work.
HH: Erwin, if 50 states had set up exchanges, we wouldn’t have this problem, would we?
EC: That’s correct, because then, everybody would be getting from a state-established exchange. But I very much disagree with the characterization that this is clear text. What those who support the law agree with the 4th Circuit saying here, is it’s absolutely clear that Congress wanted anyone who purchased insurance from an exchange to be able to get the tax credit. If the state creates the exchange, that’s fine. If the federal government creates the exchange, that’s fine. But Congress never meant to allow a state by not creating an exchange to gut the statute.
HH: But now Erwin, this is just me asking a simple question. If 50 states, if they had wanted the states to set up exchanges in order to provide a buffer from the federal government for political blowback, they would have highly incentivized the states to do so. And one of those incentives would be your citizens will only get a tax credit if you set up the exchange. And who knows? If the Supreme Court upholds the plain language of the law, other states may go back and set up those exchanges.
EC: There’s no indication at all that Congress meant to allow states to nullify the tax credits by not creating state exchanges. I very much am persuaded by the 4th Circuit that the context and purpose of this law make it clear that Congress wanted to let anybody who qualified, who purchased insurance from an exchange, get this tax credit.
HH: Matt Bowman, I think actually the argument is very powerful that if you want to incentivize states to do something, create something they only get if they do it.
MB: I think the only way that the advocates of the government’s position, and as the Dean has expressed, can say that there’s no indication that Congress intended this, as if they ignore the actual text, which says that the subsidies occur in exchanges established by the states. Now if you ignore that and say well, there’s no indication anywhere else that Congress intended this, I think that there are problems with that argument. But ultimately, you have to negate what Congress passed. And there’s an irony here that President Obama has been saying in response to House Republicans in particular who want to repeal Obamacare. He’s been saying for four years now, this is the law. The ACA is the law, and people just have to accept it, except when the President himself and his administration decide to implement the law, and the employer mandate doesn’t work, or all the plans that he was cancelling on people during an election season doesn’t work. They just decide to do something other than what the law says, and this is another example of that.
HH: Erwin, I want to play for you and Matt a very important quote from Jon Gruber, one of the architects of this law, which came to light just this week. This is Jon Gruber talking at the AHEC Conference on October 17th, 2013.
JB: It’s just, you can’t do it politically. You just literally cannot do it, okay? Transparent financing, and let’s have transparent financing, also transparent spending. I mean, this bill was written in a tortured way to make sure CBO did not score the mandate as taxes. If CBO scored the mandate as taxes, the bill dies, okay? So it’s written to do that. In terms of risk-rated subsidies, if you had a law which said healthy people are going to pay in, made it explicit that healthy people pay in and sick people get money, it would not have passed, okay? Just like the people, transparent, lack of transparency is a huge political advantage. And basically, you know, call it the stupidity of the American voter or whatever, but basically that was really, really critical to getting anything to pass. And you know, it’s the second-best argument. Look, I wish Mark was right, we could make it all transparent. But I’d rather have this law than not. So it’s kind of like his reporter story. You know, yeah, there’s things I wish I could change, but I’d rather have this law than not.
HH: So Dean Chemerinsky, this goes to mens rea. It goes to the motive of the people who wrote the law, Jon Gruber clearly one of the architects of the law. Why, how can this, the Court listen to the Solicitor General talk about what the government really intended when there’s admission against interest here from one of its architects that the government lied throughout?
EC: Because we know statements like that are given absolutely no weight by either side in the Supreme Court. It’s too easy for people to make after the fact statements about what they did or didn’t intend. For some justices, they want to look only at text and context. Some justices will look at legislative history. No one will give any weight to a statement like that, and I think all three of us would agree with that.
HH: No, I don’t. Matt Bowman, do you agree with Dean Chemerinsky?
MB: Well, the irony here is that the side in this case that’s relying on after the fact statements about what they did or didn’t intend is the side that’s trying to negate the plain language of the statute, which says subsidies happen in exchanges established by the states, and an exchanged established by the federal government is not an exchange established by the states. I think this case will ultimately be the flip side of Chief Justice Roberts upholding the individual mandate. The reason he gave, and he came on a lot of criticism in that case. The reason he gave for doing that is he said it’s not our job as the Court to protect the people from the consequences of their political choices. Likewise, it’s not the Court’s job to rewrite what Congress wrote, even if it doesn’t appear to work in practice.
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HH: Dean Chemerinsky, the 6th Circuit case that we talked about, DeBoer V. Schuette. This is an important case, and those of us who believe in originalism think that Judge Sutton’s opinion is an extraordinarily important one. I’m curious as to whether or not you think this will proceed to the Court immediately, or if it’s a long and winding road before the issue of Constitutional amendments banning same sex marriage makes it to a 5-4 decision one way or the other at the Court?
EC: I think it goes up very quickly to the Supreme Court. The challengers of the laws in these four states have agreed they are not going to seek en banc review in the 6th Circuit. In other words, they’re not going to seek review from the entirety of the 6th Circuit judges. They’re going to file petitions for Supreme Court review, and they’re going to try to get them filed by the end of this week. That would then mean that the states have 30 days to respond. And basically, it means it should be on the Court’s conference list for January. And assuming review is granted, then it would be heard in April and decided by the end of June. All of us believe that the Supreme Court denied cert on October 6th in cases because there was no split among the circuits. Now, there’s a split among the circuits. I think everyone believes the Supreme Court’s going to take this.
HH: Matt Bowman, do you agree with Dean Chemerinsky?
MB: I do. And I think the opinion from the 6th Circuit is especially important, because it’s the most prominent one thus far to recognize that the Constitution does not demand that there be one irreversible view of marriage that the courts can force on all the states. That’s a position that he took out of judicial modesty, and also out of deference to the fact that this is a definition of marriage that has existed not only for millennia in tradition, but for reasons that make sense because marriage and children and men and women go together.
HH: Now there’s pending cases in the 5th Circuit and the 8th Circuit. Is there any argument, technical argument, for the Court waiting to see what happens in those? And will those courts in turn, if cert petitions are filed, hold back on their decisions, Matt Bowman, until the Court acts?
MB: I don’t see why the Supreme Court would need to wait, because as I think the Dean sort of suggested, there’s almost an irrevocable split now among the circuit courts that needs to be resolved.
HH: Dean, do you agree with that as to whether or not they wait for the 5th and the 8th Circuits?
EC: No, I think now there’s a split, I think now they’ll take the case. And of course, I also want the change to respond to that…
EC: …because I was just describing for you. He sort of slid into defending the 6th Circuit. I think Judge Sutton’s opinion is clearly wrong. We don’t leave basic rights to the political process. The Constitution says no person shall be denied equal protection under the law. Laws that prohibit same sex marriage deny that to gays and lesbians. Judge Sutton said we should leave this to the political process. But we didn’t leave Virginia’s anti-miscegenation laws to the political process. We didn’t say they’ve prohibited interracial marriage for 150 years, so it’s okay. I rarely like to make predictions of what the Court’s going to do, but I feel very strongly the Court is going to reverse the 6th Circuit and agree with the 4th, the 7th, the 9th, the 10th Circuits, and almost every federal judge that laws that prohibit marriage equality violates Constitutional protection.
HH: Well, one of the reasons I wouldn’t mind if they waited so that you could see if I, when you rattle off your circuits, we could rattle off the 5th and the 8th Circuit. But Dean, if I can follow up with you for a second, I believe Justice Kennedy rebuked the lawyers in the earlier case for comparing this to the miscegenation cases, arguing that in fact what happened in the South was an aberration of human history, that interracial marriage had been the rule throughout all of human history, and that that was not an appropriate analogy. So I don’t know that, and the 14th Amendment has a big difference there, too, coming in specifically directed it and emancipating the newly-freed slaves. I’m just curious if you’re telling me, if you’re telling the audience that the whole human history of marriage comes down to one judge deciding one case on one decision day? Anthony Kennedy gets to decide for all of civilization what marriage is?
EC: Well, the Supreme Court in United States V. Windsor said we don’t defer to the political process when it passed the Defense of Marriage Act. The Supreme Court rejected the argument that because marriage is traditionally about procreation, we can deny this to gays and lesbians. You invoked Justice Kennedy. Remember at the oral argument, he said look at all of the children in California who have same sex couples as parents. And there’s 200,000 such children across the country. Don’t those children deserve to have parents that are married? Don’t they get the same benefit of family stability that marriage provides, that children of heterosexual couples get?
HH: And Matt Bowman, I believe that Judge Sutton would respond they might. And New York State in fact legislated them those rights. And other states might do so as well. But the United States Supreme Court can’t change the law around the world, and it can’t change the Constitution of the United States. Isn’t that what he’s going to say?
MB: I think so. And it’s simply not plausible to maintain that the Constitution or the 14th Amendment prohibits states from defining marriage and recognizing the reality that men and women bring distinct and irreplaceable gifts to family life when all the states did that until 2003. The Constitution didn’t prohibit them from doing that in the 1800s or the 1700s, for that matter. It doesn’t prohibit them from doing it today, and there’s an amply rational basis for saying that marriage is a fundamental building block of society. And it’s not denying it anyone to just define what it is.
HH: Erwin, I’d like to ask you as well, Justice Scalia in the Windsor case asked from the bench, when exactly, Counselor, did the Constitution change? I’d like to ask you that question. When did it change?
EC: And when did the Constitution change with regard to interracial marriage that we were just talking about?
HH: On the 14th, the date of the ratification of the 14th Amendment.
EC: Or when did the Constitution change with regard to segregation of schools?
HH: The date of the ratification of the 14th Amendment.
EC: …rather than support the…
HH: The date of the ratification of the 14th Amendment, Erwin. That’s easy. That’s the date of the ratification of the 14th Amendment.
EC: But in 1896 in Plessy V. Ferguson, the Supreme Court upheld separate but equal. That didn’t change until 1954.
HH: The Court was wrong. Justice Harlan dissented. The Court was wrong then.
EC: But of course, what we’re getting at here is Justice Scalia believes that the meaning of a constitutional provision is fixed when it’s adopted, and changes only by amendment. I don’t believe that, and more important, a majority of the justices don’t believe that. Take Lawrence V. Texas in 2003, that said that states cannot prohibit private, consensual homosexual activity. When did that become unconstitutional? In Lawrence V. Texas in 2003. So I think that it is a trick and an unfair question, because the Constitution is a living document. It always has been, and thankfully, a majority of justices believe it should be.
HH: I think Erwin just answered the question, Matt Bowman. I do think it changed on the date of Lawrence V. Texas, and that it was an act of judicial imperialism not easily undone.
MB: It changed on that date, but the refusal to admit that we’re imposing modern changes on the Constitution, I think, is what’s telling. And I don’t think the Dean answered the question. If he thinks that the Constitution changes based on what judges happen to think in 2014, then he should say well, it hasn’t changed, yet, your honor, but we’d like you to change it in June of 2015. And they should just say that. And at that point, it will be laid bare that we’re not talking about, in reality, a constitution that when the 14th Amendment was passed prohibited the states from defining marriage as man and woman as all civilizations had done up to that time. We’re talking about imposing this on the American people, and it taking an issue away from the ability of people to affirm and restore marriage as a union of man and woman in their own, through their democratic process.
EC: The 14th Amendment says that no state can deny any person equal protection under the law. At the very least, we have to agree that laws that prohibit same sex couples from marrying are discriminating against them. The only question is, is there any legitimate government interest served by that? That’s what the Court has to decide today. And I’ve yet to hear anyone articulate what’s the legitimate interest in keeping gays and lesbians from being able to marry out of love and commitment, and get all the legal benefits of marriage.
HH: I agree with the first part of what Dean Chemerinsky just said, disagree with the second, and a time for a future conversation. Thanks both to Matt Bowman and to Dean Erwin Chemerinsky.
End of interview.