Part II – Administrative Law, Federalism and Separation of Powers
Professor Amar was the next presenter. As a self-described “academic” with “life tenure,” his perspective enlightened the audience in many ways.
Professor Amar focused his presentation on King v. Burwell, which he described as “far and away [the] most important case of the term,” in large part because the author of the majority opinion, Chief Justice Roberts, “showed what it takes to be a judge” by upholding a statute he clearly does not like, based upon the Chief’s careful reading of the statute. The King decision upheld the federal subsidies in the Affordable Care Act for states which had not created their own health care exchanges. Describing Chief Justice Roberts’ opinion as “masterful,” Professor Amar explained that it clearly broke down a complex statute which tries to solve a complicated problem. He highlighted the three necessary parts of the statute: (1) no insurance blocking pre-existing conditions, (2) everyone must get the insurance while healthy and (3) subsidies are necessary to make the program affordable. Professor Amar explained that the decision showed how invalidating one part would be futile because all three parts are dependent upon each other. Since statutes have become increasingly complex, the Professor suggested that they are likely to have glitches, but it is important to follow the purpose and overall legislative intent, and that is what the Chief Justice did in his opinion.
Professor Amar suggested that many in academia thought the entire idea that the case was accepted by the Court was ridiculous because it presented only a “gotcha game”; there had been no split in circuits or other typical reason for the Court to accept the case. Mr. Katyal disagreed. He felt that a clear question of statutory construction was important for the Court to decide and suggested the case involved an ideological dispute about whether to read text literally. Mr. Rosenkranz was astounded that the Court stated not to defer to agencies for important economic considerations, and noted this case was decided by “supermajority.”
The separation of powers among the branches of government was discussed, highlighting Zivotofsky v. Kerry, a case in which the Court upheld the President’s unilateral power to recognize foreign nations and affirmed the Circuit Court’s invalidation of a statute permitting a person born in the city of Jerusalem to request that “Israel” be listed on his passport instead of “Jerusalem” as place of birth. Professor Amar was unsure whether he agreed with the decision and also sought to liken the statute and its interpretation to the recent foreign policy deal with Iran. Basically, Professor Amar suggested that Congress must remember its role in the balance of power; it is not whether a better circumstance exists theoretically, but whether the President has the power to act in the particular way proffered.
Finally, Arizona State Legislature v. Arizona Independent Redistricting was discussed. That case involved the question of whether actions, by a body created pursuant to ballot initiative rather than elected legislative action, were in compliance with the Elections Clause of the Constitution. The Court upheld the creation of such a body in Arizona, a state in which ballot initiatives are considered to be on equal footing with laws created by the elected legislature, basing its decision on federalism principles. The decision was important because it had to do with gerrymandering and the right of the initiative-created body to make redistricting maps. Professor Amar supported this decision, noting that if Congress did not like the decision, a contrary statute could be passed. Professor Amar also took credit for a new word used in the option, i.e., “intratextualism,” a word he said he first created 15 years ago.
Read Part III Now
Tagged: Appellate Practice, Litigation, Supreme Court of the United States
