Alas, I find that Ilya Somin over at Volokh’s is, in the context of King v. Burwell, back-pedaling furiously away from NFIB’s
anti-coercion principle. As explained by Abby Moncrieff’s excellent amicus brief
, that principle is relevant to King in the form of an “avoidance canon.” The Affordable Care Act, on Abby’s reading, should not be construed to put state governments to the choice of either setting up healthcare exchanges are having their citizens lose access to tax subsidies. Such a choice is precisely similar to forcing Texas to choose between either carrying out the feds’ greenhouse gas policy (on one hand) or having the feds impose extra-onerous burdens on Texas’ private industry (on the other).
As I explain after the jump, Abby is absolutely correct, at least if NFIB Part IV(B) is given a reasonably broad reading. Yet I find that Ilya Somin is dismissing these worries about coercion by offering a bizarrely narrow reading of NFIB’s anti-coercion principle.
Is Ilya just another fair-weather federalist who forgot his decentralizing principles as soon as his immediate political or ideological interests cut the other way? I think that the problem is better understood as a strategic rather than moral problem: Libertarians and conservatives do not want to sacrifice their litigation priorities for the sake of general principles of federalism until they get a credible commitment from liberals like Abby that the liberals will follow suit when liberal priorities are threatened by robust decentralization. After the jump, I’ll explain how King presents a golden opportunity for such a grand bargain.