Recently, a friend–who is much brighter than me but doesn’t comment on the federal judiciary for employment reasons–made an interesting point about the Solicitor General’s office and the position it’s taken in two cases before the Court this term–Yates v. US and King v. Burwell. Essentially, the SG’s office might be undermining itself by taking divergent views of when text means what it says.
Yates is the sordid tale of a hardened career criminal–specifically, a fisherman with no prior convictions who had the audacity to catch a fish that was too short under federal regulations and then throw it back into the ocean. The federal government prosecuted him under the anti-shredding provision of Sarbanes-Oxley that was designed to prevent coverups of white-collar crime. The Court took the case, without a circuit split, and proceeded to absolutely marinate the government’s advocate during oral argument.
King is another Obamacare challenge. This one does have a circuit split–the D.C. Circuit dealt a bodyblow to the ACA that the Fourth Circuit declined to echo. King centers on the ACA’s subsidies. The statute mandates that people have health insurance, but it provides federal financial assistance in obtaining that insurance if you’re under a certain income level. But the way the statute is written, it says that the subsidies are available for plans purchased “through an exchange established by the State.” That language, the D.C. Circuit held, meant that the subsidies aren’t available to people who bought plans through federal exchanges (34 states lack state exchanges). In essence, a ruling for the petitioners in King would gut the ACA’s core workings and render it fiscally impossible for poor people in 34 states to buy the health insurance that Obamacare demands.
Here’s where the divergence comes in. The government held a hard textual line on Yates. It contended that common sense be damned, “Taken as a whole, Section 1519’s reference to ‘any * * * tangible object’ is straightforward and plain.” Yates, Br. for Respondents at 16. Essentially, it said, ‘obviously Congress wasn’t looking to prosecute fishmongers when it passed Sarbanes-Oxley, but the words are the words.’ Compare that to the government’s position in King. It advocates for a holistic reading of the ACA, arguing that whatever the specific language in one provision might say, the statute clearly meant to provide healthcare for the poor. The “plain meaning that [this Court] seek[s] to discern is the plain meaning of the whole statute, not of isolated sentences.” King, Br. for Respondents at 15. The positions can be harmonized through theoretical effort, but the gut level takeaway is that in one case, the government wants the Court to read the statute literally, and in another, it asks the Court to exercise common sense and reach the sensible result that the purpose of the law demands.
This may not matter. The Court might well reach the result that the government wants in both cases. But it’s a little telling. Part of the SG’s job is to harmonize the positions she takes over a broad range of cases, and part of it is to speak the language of the current Court. Yates is an admirable effort to speak that language. But General Verrilli hasn’t always done such a great job at it. He’s generally a good SG, and certainly there are no reports indicating he doesn’t run a good office. But it’s not just that he isn’t a fluent originalist/textualist–he doesn’t even have the tourist’s phrasebook of originalism/textualism. For example, the oral arguments in Noel Canning last term were stunning. Lured into a line of questioning by Justice Kagan, Verrilli said that the Recess Appointments Clause might now function as a “safety valve” for Congressional intransigence. This, predictably, led to an absolute explosion from the bench, as eight justices (plus Justice Thomas, silently) excoriated Verrilli for this novel constitutional approach.
The thing is, the argument wouldn’t have been stupid thirty-five years ago. Verrilli clerked for Justice Brennan; Brennan would have been sympathetic to the argument that the Clause now functions as a safety valve. But on the current Court, Steve Breyer is the only even potential vote for that naked of a “workability” analysis.
So in Yates and King, we see an SG’s office that has taken two positions that are certainly reconcilable, but generally feel like they contradict each other. From the position of the United States, King is the infinitely more important case. But the brief in Yates may undermine its holistic argument in King. And it’s the continuation of what we’ve seen for several years–a talented, well-run SG’s office that either can’t–or won’t–speak the language of the current Court. That office contains some of the smartest, most dedicated lawyers in the country, and they really should improve their ability to count to five.