Notice & Comment

King v. Burwell Amicus Briefs: The Doctors Weigh In

This is the fourth in a series of my posts discussing some of the amicus briefs filed in King v. Burwell:

Our next amicus brief comes two nonprofits groups, the Association of American Physicians & Surgeons and the Citizens’ Council for Health Freedom, along with some individual physicians (the AAPS brief). I will confess that I was skeptical of the brief almost as soon as I opened it, given its Questions Presented section. According to the AAPS brief, King v. Burwell calls for the Court to address some particularly broad issues, including whether Section 36B is unconstitutional, whether the IRS rule tramples the bicameralism and presentment requirements, and whether the IRS rule flouts McCullough v. Maryland.

Based on my admittedly limited experience, it’s not appropriate for amici to add or modify the actual question on which the Court granted certiorari. I therefore doubt that the Court will address the constitutional issues discussed in the AAPS brief. However, the groups’ prior briefs have been cited by the Supreme Court, so their submissions presumably get read by someone and therefore merit some comments.

The AAPS brief takes a somewhat puzzling approach to King v. Burwell. It largely assumes that the IRS rule “conflicts with the authority provided by the statue” and then explains what’s wrong with that. But there really isn’t a debate on that point — all parties agree that if a regulation goes beyond the statute, it is void. The question, assumed away by the AAPS brief, is whether the IRS rule in fact goes beyond the statute.

The brief also presents a temporal separation of powers challenge. The AAPS argues that because Section 36B establishes tax credits indefinitely, it runs on “auto-pilot” and infringes on the powers powers of future Congresses. By running on auto-pilot, the statute presents the same dangers “associated with flying a commercial jet aircraft on auto-pilot after it has lost both its engines.” Section 36B is thus like “US Airways Flight 1549 [which] lost both of its engines after being hit by a huge flock of birds,” and the 111th Congress has violated the powers of future Congresses.

Although I celebrate any brief that references seagulls, I don’t buy the AAPS’s argument. If a future Congress doesn’t like Section 36B, it can repeal it. Or, a future Congress could eliminate the statute authorizing advance payments of premium tax credits. Nothing in Section 36B legally prohibits future Congresses from making spending decisions different from those made by the Congress that enacted Section 36B. King v. Burwell won’t be decided on separation of powers grounds.

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