Is the Government’s Brief Fit for a King (v. Burwell)? Three Hits and Three Misses

tax-1500The Solicitor General’s brief in King v. Burwell, the subsidy case before the Supreme Court this week, is more sure-footed than what the Government penned in the main individual-mandate case. Below I identify three of its best features, along with three misses.

First Hit: Primed for Battle

After a parade of effective bullet points about the “horribles” that it claims the Petitioners’ reading would foist upon the Affordable Care Act, the Government toys with the verbs “rewrite,” “explain away,” and “ignore” to juxtapose the two sides’ readings as clearly as can be:

In short, to make their reading of “established by the State under Section 18031” fit with the rest of the Act, petitioners must rewrite so many of the Act’s provisions, and explain away or ignore so many textual incongruities and contradictions, that their argument collapses under its own weight—wholly apart from the havoc it would wreak on the Act’s structure and design. The government’s interpretation, in contrast, allows the Act to function as a “symmetrical and coherent regulatory scheme,” Brown & Williamson, 529 U.S. at 133 (citation omitted), with no need to rewrite, explain away, or ignore any of its provisions. [32-33]

(Note, too, that the sentence about the Petitioners’ reading feels burdensome in itself, while the sentence about the Government’s reading feels much lighter.)

Second Hit: Zinger Verbs

The Office of the Solicitor General is not a fan of hyperbolic or emotional language, but that doesn’t mean its briefs lack soul. Choice verbs used thematically help color how the reader sees the parties and their arguments.

Note how the government favors violent-sounding verbs to tarnish its opponents’ positions:

Petitioners do not dispute that denying tax credits in States that opt not to establish Exchanges for themselves would torpedo the insurance markets in those States—a result that would be particularly disrespectful of state sovereignty. [41]

Petitioners’ reading would also make a hash of other congressional judgments reflected in the text. [53]

Petitioners’ contrary rendering of the Act—which rests on a contextual misreading of a single phrase in two subclauses of Section 36B and an implausible account of the Act’s design and history—would thwart the Act’s core reforms in the 34 States that exercised their statutory prerogative to allow HHS to establish Exchanges for them. [12]

Determining the meaning of a statute duly enacted by Congress, particularly a statute as consequential as this one, by focusing on isolated phrases divorced from textual cross-references, definitions, and context—and with no regard for the statute’s structure and design—does not respect the rule of law.1 [17]

We often think of zinger verbs as weapons that you aim at your opponent, but as the example below suggests, the Government also clings to verbs that make it sound reasonable, even peaceable:

Interpreting Section 36B to make tax credits available through the Exchanges in every State is essential to the effective operation of the Act’s insurance-market reforms and to its framework of cooperative federalism. That interpretation harmonizes the relevant provisions of the Act, “allowing them to accomplish their manifest objects.” [35]

Third Hit: The Non-Concession Concession

The Government never fesses up that the fateful phrase “Exchange established by the State” was a drafting glitch. Instead, it makes a non-concession concession akin to an “I’m sorry if you were offended” non-apology: It admits that the Affordable Care Act is no drafting masterpiece—implying, of course, that no complex statute could ever meet that standard—while seizing on some apt language from a key recent Clean Air Act case:

Given its many cross-references and interrelated provisions, the Act is not “a chef d’oeuvre of legislative draftsmanship.” Utility Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2441 (2014) (UARG). But that does not grant license to determine the meaning of statutory language in isolation—particularly when the term is a technical one that defines how an interlocking system of reforms will operate. [20-21]

Enough praise! Let’s look now at a few misses.

First Miss: Adverbs Aweigh

The emphatic use of “literally” is questionable enough to have earned a cameo in the Weird Al Word Crimes video. But even if “literally” is now an acceptable informal rhetorical marker, coming on the heels of “strikingly,” “accordingly,” and “federally,” the Government’s “literally” below is just one long adverb too many:

Most strikingly, the Act defines a “qualified individual” eligible to shop on an Exchange as a person who “resides in the State that established the Exchange.” Accordingly, if a federally-facilitated Exchange were not “established by the State,” it would literally have no customers. [14]

(Not to mention that using “literally” in a case about textual construction was probably not a great idea in the first place.)

Another addled adverb is “already” in the sentence below—not because there’s anything wrong with the word but because it’s awkwardly placed before “nearly” rather than inside the “have selected” phrase:

Enrollment for 2015 is still in progress, but already nearly 7 million customers have selected or been reenrolled in a plan through a federally-facilitated Exchange . . . . [11]

Second Miss: Clunker Constructions

Some of the best brief writers in the land punch a clock at the Office of the Solicitor General, but the occasional clunker sentence still slips through.

The dangling participle below suggests that the States, and not the federal government, crafted the Affordable Care Act:

Congress drew on the States’ experiences in crafting the ACA. [6]

And in the sentence below, the odd combination of “petitioners seize itself” also threw me for a loop. My guess is that someone in the Office has morphed “don’t end a sentence with a preposition” into a nonexistent “don’t end ANYTHING with a preposition.” Perhaps that’s why the Government couldn’t bring itself to write something more natural here, like “the phrase that petitioners seize on”:

Indeed, the phrase on which petitioners seize itself includes a cross- reference and a defined term, making clear2 that it cannot be read in isolation. [21]

Nor can I get my head around the notion of the Affordable Care Act relying on a combination of “reforms predicated upon the availability of tax credits subsidizing the purchase.” Does the Act implement reforms rather than rely on ones that already existed? Is the “subsidizing” before the Act or after?

To solve those problems, the Act relies on a combination of reforms predicated upon the availability of tax credits subsidizing the purchase of insurance. [3]

[Possible edit: “To solve those problems, the Act implemented a combination of reforms that presume that tax credits will subsidize the purchase of insurance.”]

And finally, can an absence yield an impossibility?

The absence of qualified individuals in States with federally-facilitated Exchanges would yield a further impossibility . . . . [28]

[Possible edit: “Nor is it possible for States to have federally facilitated Exchanges with no qualified individuals.”]

Third Miss: Out of Steam

The last lines of a brief are prime real estate, but the Government’s clunky final sentence is a bit of a ho-hum head-scratcher that reminds me why Strunk & White admonished writers not to use “the fact that” as the subject of a sentence:

The fact that petitioners’ reading would upend not only the administration of the tax credits but also a host of the Act’s other reforms only confirms that the Departments’ shared interpretation harmonizing the Act’s provisions warrants deference.3 [59]

I’ll end with two random fun facts: The Government uses 71 em-dashes and starts 35 sentences with the word “But.”


  1. The brief has two divorces. Here’s another one: “Seizing on isolated phrases in this complex and technical statute and giving them a meaning divorced from statutory context, petitioners advance a radically different conception of the Act’s operation.” [18]
  2. I appreciate the Government’s precision here in using “making clear” rather than “which makes clear.” The -ing form makes clear, so to speak, that it’s the inclusion of both the cross reference and the defined term, and not just the defined term itself, that “makes clear.”
  3. The end of the Michael Carvin brief for the Petitioners is stronger: “What all this shows, in short, is that Congress did not delegate this question either to the IRS or to HHS. Rather, it unambiguously made the decision itself, by “directly sp[eaking] to the precise question” at issue in § 36B. Chevron, 467 U.S. at 842. Needless to say, the Court should take that decision seriously.” [56]