Afternoon Must-Read: Sahil Kapur: The Halbig Truthers

It is very interesting: to overturn Chevron vs. NRDC would instantly require the substantial rewriting of every single administrative law textbook in the United States, and reopen a substantial proportion of administrative law cases adjudicated since 1984, plus all administrative determinations made under the shadow of the Chevron Doctrine. Five justices could do a Bush v. Gore–claim that this decision is sui generis and not a precedent for anything. But that is embarrassing enough that it is hard to imagine that Roberts, Scalia, Alito, Thomas, and Kennedy would do that for anything less than the presidency. But it is also hard to believe that Roberts, Scalia, Alito, Thomas, and Kennedy would make a hash of administrative law doctrine. And it is equally hard to believe that any of the Five Horsemen would want to alienate their patrons in the Republican Party further.

The only way out, I think, is for the Five Horsemen to take refuge in delay and demand that the plaintiffs bring them a split among the circuits before they take the case. But the very smart Robert Litan has long thought that Halbig has legs, and wrote something at http://bloomberg.gov a while ago predicting it would go 5-4 at the Supreme Court–and that the health exchanges in the red states would then go into adverse-selection meltdown…

Sahil Kapur: Why This Conservative Lawyer Thinks He Can Still Cripple Obamacare: “The top lawyer arguing a case to overturn Obamacare subsidies…

…believes he can succeed at crippling the law even if it’s upheld in every district and appellate court…. Michael Carvin… expects the justices to view an expected D.C. Circuit ruling in favor of the law as corrupted by politics and agree to review it. ‘I don’t know that four justices, who are needed to [take the case] here, are going to give much of a damn about what a bunch of Obama appointees on the D.C. Circuit think…. This is a hugely important case…. I’m not going to lose any Republican-appointed judges’ votes on the en banc — then I think the calculus would be, well let’s take it now and get it resolved.’ And if the case reaches the Supreme Court, Carvin expects all five Republican-appointed justices to rule that the federal exchange subsidies are invalid. Asked if he believes he’d lose the votes of any of the five conservative justices, he smiled and said, ‘Oh, I don’t think so’.”