The fight over Obamacare's insurance subsidies is complex, with different precedents and competing legal theories at play. But at the Supreme Court oral arguments on Wednesday, Justice Elena Kagan offered the simplest analogy I've heard for the issue at the core of King v. Burwell.
King v. Burwell is all about whether regulations should treat state-run and federally-run marketplaces the same. This was Kagan's analogy for that dispute, making the argument that of course they play the same role.
So I have three clerks, Mr. Carvin. Their names are Will and Elizabeth and Amanda. Okay? So my first clerk, I say, Will, I'd like you to write me a memo. And I say to Elizabeth, I want you to edit Will's memo once he's done.
And then I say, Amanda, listen if Will is too busy to write the memo, I want you to write such memo. Now, my question is: If Will is too busy to write the memo and Amanda has to write such memo, should Elizabeth edit the memo?
In my chambers, if Elizabeth did not edit the memo, Elizabeth would not be performing her function. In other words, there's a substitute, and I've set up a substitute.
Kagan's point here, which is brilliantly simple, is that any interpretation requires context. And as soon as context comes into play the challenger's case falls apart.
Samuel Alito did have a rebuttal that kept within the confines of Kagan's analogy:
If I had those clerks ... and Amanda wrote the memo, and I received it and I said, this is a great memo, who wrote it? Would the answer be it was written by Will because Amanda stepped into Will's shoes?
Alito's trying to make the challengers' case here: even if Elizabeth edits the memo, there are still things that are different about the document.
There is one other place in King's history where a separate judge made a similar analogy — albeit using pizzas rather than law clerks.
"If I ask for pizza from Pizza Hut for lunch but clarify that I would be fine with a pizza from Domino's, and I then specify that I want ham and pepperoni on my pizza from Pizza Hut, my friend who returns from Domino's with a ham and pepperoni pizza has still complied with a literal construction of my lunch order," Judge Andre Davis wrote in a concurring opinion back in July, when the Fourth Circuit Court of Appeals upheld the King case.