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Articles & Commentary

March 4, 2015

When the Supreme Court heard oral argument this morning in King v. Burwell, the latest challenge to the Affordable Care Act, everyone was eager to hear what Chief Justice John Roberts and Justice Anthony Kennedy, widely viewed as the likely swing voters in the case, would have to say.  Chief Justice Roberts was uncharacteristically quiet during the argument, but Justice Kennedy wasn’t.  He asked a number of questions that seem to provide a good window into his thinking, and supporters of the ACA should be happy about what that window appears to have revealed.

March 3, 2015

The text of the Affordable Care Act is clear that tax credits are available for eligible Americans nationwide, as part of the law’s overarching goal to provide quality, affordable health care for all. The King challengers’ contrary interpretation of the Affordable Care Act fails basic rules of reading comprehension, not to mention long-established rules on how to interpret statutes. Their claims shouldn’t get a pass from the Supreme Court. 

March 3, 2015

Opponents of the Affordable Care Act have been caught off guard by the possibility that the challenge in King v. Burwell actually violates principles of constitutional federalism. The federalism argument has been made in two important Supreme Court amicus curiae briefs, one submitted on behalf of 22 states and the District of Columbia, and another on behalf of four law professors – Abbe Gluck, Gillian Metzger, Thomas Merrill, and Nicholas Bagley.

March 2, 2015

Scalia himself has often endorsed, most recently in a major 2014 decision interpreting the Clean Air Act, the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” This “fundamental canon” underscores the real issue in King v. Burwell: Will he and his fellow conservatives follow common-sense principles fundamental to all legitimate approaches to interpreting laws and uphold the nationwide availability of affordable ACA tax credits—or will they bear out critics who denigrate textualism as merely a sham for rationalizing politically driven, legally flimsy results?

February 26, 2015

When the Supreme Court hears oral arguments in King vs. Burwell next week, all eyes will be on Chief Justice John G. Roberts Jr., to try to figure out which way he's leaning. After all, this case is the latest challenge to the Affordable Care Act, and the last time the law was before the high court, Roberts was the deciding vote in favor of the government. There's one very good reason to think the chief justice will rule for the government again: He's too good a lawyer to do otherwise.

February 19, 2015

At the end of the day, what matters is not what President Obama said about the legality of his action; what matters is what the laws and precedents say, and they make clear that his action was lawful. When the Fifth Circuit reviews this week’s immigration decision on appeal, it should vindicate the views of the legal advisors who approved this action, and not the political advisors who presumably told him to say they wouldn’t.

February 10, 2015

While the American people rightly revere Washington, Madison, and their fellow Framers, it took the heroic efforts of President Lincoln and his generation to create the “more perfect Union” that we live in today. It’s only after the ratification of the Second Founding Amendments that the Constitution begins to emerge fully as the inspiring document that it is today. A century and a half later, this Second Founding deserves a proper celebration.

January 30, 2015

On Wednesday, as part of a brief filed by my organization, Constitutional Accountability Center, in King v. Burwell on behalf of state and federal legislators -- including Senate Democratic Leader Harry Reid and House Democratic Leader Nancy Pelosi -- we dropped a bit of a bombshell. 

January 20, 2015

In commemorating Martin Luther King Jr. Day, the nation collectively paused a moment to take stock of how far we have come in realizing equality and justice, and how far we have left to journey. Given that there is unquestionably far to go when it comes to fair housing opportunities and conditions, the Supreme Court shouldn't dishonor Dr. King's memory by removing one of the tools we have used to build bridges from the "islands of despair" of racialized poverty and segregation that Dr. King so powerfully decried.

January 16, 2015

We should know by the end of June what kind of America we'll be living in. I hope and trust it will be an America in which marriage equality is recognized nationwide. The Constitution requires no less.