The government has now filed its brief responding to the challengers in the King v. Burwell lawsuit, which claims the Affordable Care Act doesn’t make subsidies available to people in states on the federal exchange. If the Supreme Court upholds the challenge, it could yank subsidies from millions and unleash untold disruptions that could cripple the law in many parts of the country.

The government argues that the text, structure, design, and history of the ACA leave no doubt that it makes subsidies available in every state, regardless of who set up the exchanges. The government also makes an argument that could prove persuasive to Chief Justice John Roberts: The challengers’ reading would transform the subsidy structure into a “threat” of “severe consequences” to any state that declined to set up an exchange  (the loss of subsidies for untold numbers of constituents), a threat without any clear warning, since the law does not explicitly signal it. This, the government argues, would amount to “disrespect for state sovereignty” and do away with the ACA’s “model of cooperative federalism.”

Many observers expect Roberts to be the pivotal vote in this case. Harvard professor Laurence Tribe recently published Uncertain Justice, an excellent examination of the Roberts Court, in which he argues that Roberts saved the law the first time around — in NFIB v. Sebelius — by creatively resolving a dilemma he faced. Tribe writes that Roberts struck down the individual mandate in order to place limits on federal power, but preserved the mandate as a tax in keeping with the “long-recognized judicial duty to save a law if any fair means of doing so can be found.”

Roberts could do the same thing here by concluding that the government’s interpretation of the statute — that subsidies go to people in all states — is, at a minimum, reasonable, even if an alternate interpretation (the challengers’) is also reasonable. I spoke to Tribe about the current dilemma Roberts faces as he prepares to hear King v. Burwell; an edited and condensed version of our conversation follows.


THE PLUM LINE: Do you anticipate that John Roberts will be the swing vote on King v. Burwell?

LAURENCE TRIBE: I think it’s very likely he will be. But it’s possible that if he votes to uphold the administration’s position, Justice Anthony Kennedy could conceivably join him. But I think if he does not vote to uphold the administration’s position, then it’s almost inconceivable that it would be upheld.

PLUM LINE: What do we know about Roberts’ jurisprudence, philosophy, and view of the Court’s proper role that might explain how he views the basic choice before him on this particular lawsuit?

TRIBE: The first thing he will do is be a good lawyer. He will focus on whether the text is actually clear one way or the other. A lot of conservatives say, “the text is clear, it’s about an ‘exchange established by the state.'” Roberts is not going to find it that simple. The text is at least ambiguous. It uses terms like “such exchange” when referring inter-changeably to an exchange that a state sets up itself, and to the federal exchange a state might choose to treat as its own.

The Chief Justice has not been one who insists on interpreting individual phrases in a federal law in isolation from the law as a whole. His legal philosophy is not going to make it easy for him to along with a very narrow conservative reading. He is not like Justices Scalia, Thomas, or Alito in putting on blinders when it comes to the overall structure and purposes of a law.

PLUM LINE: Your book notes that the first lawsuit represented a clash over broad questions about federal authority to regulate basic economic behavior in service of the national interest. What, if any, grand principles are at stake here, and how might he view the larger philosophical questions that this lawsuit brings up?

TRIBE: The largest principle involved is the principle of states’ rights, even though the case at first glance may not seem to present it. He has said in a number of contexts that the federal government should not be able to hold a gun to a state’s head and pressure it, especially without clear advance warning.

Here I think he would say, “nobody warned any state that if it accepted the invitation of the federal government to rely on the federal exchange, that by doing so, it would be hurting huge numbers of its own citizens by taking away from them the ability to get help purchasing the insurance the ACA requires them to purchase.” The Clear Warning Principle is a very big part of the way Roberts views federalism. He is at root a conservative, and hostage taking, especially without fair warning, is not a conservative principle.

That’s not just a technical argument. That’s an argument that goes to the protection of states from being essentially tricked by the federal government. The nature of Roberts’ approach to states’ rights and issues of fairness is that without fair warning, you can’t do that to the states.

PLUM LINE: You think he’ll be swayed by the argument from a number of states who will say in their brief on behalf of the government, “we were unaware of any such threat,” and upholding the challenge now would unfairly deprive our constituents of subsidies despite the fact that the law didn’t explicitly signal these consequences?

TRIBE: Yes. I think he will find that a very powerful argument. And I think he will also be driven by the institutional damage that would be done to the Court if people saw it as pulling the rug out from under both individuals and states without fair warning. The law, and the institutional interests of the Court — as well as interests in reliance and stability, which are conservative principles — all point in the direction of not suddenly yanking the ability to get subsidies from people in those 36 or so states. That is something I think could appeal to Kennedy as well.

PLUM LINE: It sounds like you think Roberts will be sensitive to the potential consequences of upholding the challenge: Millions losing subsidies who already are benefiting; massive disruptions in insurance markets; and the pressure that would place on state governments to solve those problems.

TRIBE: I think that will be an important factor for him.  Not because he is primarily what I would call a “consequentialist.” There is a fundamental legal principle about not tricking and pulling the rug out from under states. The fact that there might be chaos in the insurance markets, as well as a serious disappointment of justified expectations on the part of states, all fit into a legal construct the Chief Justice believes in.

PLUM LINE: But let’s say Roberts accepts that the statute is ambiguous, and accepts all these arguments about the consequences for the states and the fundamental unfairness that entails. Couldn’t he still side with the challengers by saying that the plain text says what it says, regardless of what Congress meant, and that it’s not the Court’s job to fix a mistake — that’s on Congress?

TRIBE: He certainly could say that. But when you’re as good a lawyer as he is, that is not really going to be wholly satisfying. The statute says what it says. But you have to recognize that it uses language, like “such exchange,” in a way that doesn’t make sense unless you assume that it uses the word “established” in a way that isn’t just simple-minded. It doesn’t mean, “set up in the first instance by the state.” It means, “established by virtue of the choice the state has made.”

Roberts hasn’t been hesitant to read language creatively. He treated the purchase mandate as a tax. He had to be creative about language there.

PLUM LINE: He doesn’t feel bound by the supposed literal meaning of a snippet of statue in isolation? Also, the challengers argue that their plain reading can be made consistent with other parts of the statute. He doesn’t feel bound by that?

TRIBE: I wouldn’t put it that way. He does feel that if Congress screws up and writes a law that just can’t be reasonably interpreted to mean something, then he’s not going to do Congress’ work for it. But I don’t think he would see this that way. He certainly is not somebody who is stuck in the mud when it comes to taking words so literally that they are out of context and they are not what people would have been warned they meant.

The same principle of political accountability would strongly point to a requirement of clearer warning to the states. This is not a case where the only interests involved are the interests in good draftsmanship by Congress. It’s a case about the relationship between the federal government, the states, and individuals in those states.

PLUM LINE: Couldn’t the challengers counter that this situation is still the fault of the drafters of the statute?

TRIBE: I don’t think he’s particularly interested in punishing bad draftsmanship.  He’d be punishing people and states for a mistake they weren’t responsible for, if it is a mistake.

PLUM LINE: You make a strong case he’d be violating a whole bunch of his own principles if he sided with the challengers.

TRIBE: He would have to do considerable violence to the principle about warning states clearly of the consequences of choices they make before penalizing both them and their citizens for those choices. He would have to violate as well the principle that you read the statute as a whole and not just look at its snippets. If he violated those principles, I don’t think it would be something people would regard as wildly absurd. But I do think it would be deeply inconsistent with things he says he believes, and that I think he does believe.