The Affordable Care Act was adopted in 2010. Some of its provisions went into effect right away, but the central provision – setting up "exchanges" for the sale of health insurance and offering subsidies for the purchase of health insurance to low-income families – went into effect in 2014. Sixteen states set up their own exchanges for the sale of health insurance under the law; thirty-four states allowed the federal government to set up an exchange for them. The law works by giving individuals and families who earn more than the poverty level but less than four times the poverty level a refundable tax credit that can only be used to purchase health insurance. The issue in this case is whether the statute authorizes the Internal Revenue Service to issue that tax credit to all qualified persons in all the states, or whether the law provides that the subsidies are available only to individuals and families who live in states that have set up their own exchanges.
The attorneys and judges challenging the power of the Internal Revenue Service to grant tax credits to persons who live in the 34 states that use the federal exchange made two principal arguments:
(1) The law unambiguously restricts subsidies to persons who live in states that established their own exchanges - the law cannot possibly be interpreted to include persons in all the states;(2) The purpose of the law was to encourage the states to establish their own exchanges by penalizing those states that relied on the federal exchange - there is no legislative history to the contrary.
The attorneys and judges supporting the power of the Internal Revenue Service to grant tax credits to persons who live in the 34 states that use the federal exchange made the following arguments:
(1) The statute itself unambiguously defines the federal exchange as an exchange "established by the state" - Section 1321 of the Act authorizes the federal government to set up "such exchange," meaning an "exchange established by the state";(2) The term "exchange established by the state" is a term of art used consistently throughout the Act to refer to an exchange in a particular state, rather than all of the exchanges;(3) If the Act were interpreted to mean that subsidies were being intentionally withheld from states to "encourage" them to set up their own exchanges, it would violate the doctrine governing Congress' power under the Spending Clause because it would constitute "coercion" of the states;(4) If the Act were interpreted to mean that subsidies were being intentionally withheld from states to "encourage" them to set up their own exchanges, it would violate the doctrine governing Congress' power under the Spending Clause because the condition was not unambiguous and the states were not given sufficient notice of this condition for receipt of the subsidies;(5) If the states operating under the federal exchange were to lose their federal subsidies, healthy persons would likely drop coverage, leading to a sicker population of insured persons, thus increasing the cost of premiums, and creating a "death spiral" in the health insurance market in those states - a situation that was actually predicted by the attorney for the persons opposing the Act when he argued against the constitutionality of the Act in 2012, thus imposing a further burden upon the states rendering this law coercive;(6) The canon of "constitutional avoidance" counsels the courts to construe a statute in such a way as to avoid interpretations that would create grave doubts about the constitutionality of the law;(7) None of the states - either those that set up their own exchanges or the ones that opted to use the federal exchange - expressed fear that subsidies would be withheld if they chose to operate under under a federal exchange, nor did the federal government mention this possibility in its discussions with the states over setting up the exchanges;(8) One of the primary purposes of the Act was to give the states "flexibility" in deciding whether to establish its own exchange or rely upon the federal exchange - the title of the relevant provision of the Act allowing the federal government to set up "such exchange" was "STATE FLEXIBILITY IN OPERATION AND ENFORCEMENT OF EXCHANGES AND RELATED REQUIREMENTS";(9) The only provision (Section 36B) that might be construed to indicate that subsidies might be limited to persons living in states that had established their own exchanges related to the measurement of the amount of the subsidy, not to the availability of the subsidy itself;(10) This provision of the Act (Section 36B) is codified in the Internal Revenue Code, and the Internal Revenue Service has the discretion to interpret the meaning of that provision under the Chevron doctrine; and(11) The principal purpose of the Act was to make health insurance affordable to all American citizens; this purpose would be defeated by a narrow construction of the law prohibiting subsidies to taxpayers in states served by the federal exchange.
To these arguments in support of the law I would add that I studied the Affordable Care Act intensively and authored a book that focused on the likely medical and economic consequences of the law - Obamacare: Is It Necessary? What Will It Accomplish? Is It Constitutional? - and in over two years of research and writing I never saw a single reference to the possibility that subsidies would not be available in all the states. Nor did this possibility turn up in any of the voluminous reports that were generated when the law was under consideration in Congress by the Congressional Budget Office, the Joint Tax Commission, or any of the numerous research institutes that studied this law.
I set forth below the summary of the oral argument that I prepared for Supreme Court Review shortly after the argument occurred, with quotations from the transcript of oral argument.
I set forth below the summary of the oral argument that I prepared for Supreme Court Review shortly after the argument occurred, with quotations from the transcript of oral argument.
The subject of this report is oral argument in King v. Burwell.
The issue in this case involves a matter of great importance – billions of dollars are at stake, as well as the health of millions of people. The Supreme Court is called upon to decide whether or not it is lawful for the federal government to subsidize the purchase of health insurance for individuals and families who live in 34 states.
The Affordable Care Act was adopted in 2010. Some of its provisions went into effect right away, but the central provision – making health insurance affordable for persons who earn more than the poverty level but less than four times the poverty level – went into effect in 2014. The law works by giving individuals and families in this income bracket a refundable tax credit that can only be used to purchase health insurance. The issue in this case is whether the statute authorizes the Internal Revenue Service to issue that tax credit to all qualified persons in all the states, or whether the law provides that the subsidies are available only to individuals in certain states.
This case turns on the interplay between three provisions of the Affordable Care Act: Section 1311, Section 1321, and Section 1401 (that is codified as Section 36B of the Internal Revenue Code).
Section 1311 of the Affordable Care Act provides:
Each State shall, not later than January 1, 2014, establish an American Health Benefit Exchange (referred to in this title as an ``Exchange'') for the State that-- facilitates the purchase of qualified health Plans ….
Section 1311, standing by itself, would be unconstitutional. The federal government may not order the states to take legislative action and may not order the states to enforce federal law. This is called the “no commandeering” rule. To cure this problem Section 1311 is supplemented by Section 1321.
Section 1321 is entitled “STATE FLEXIBILITY IN OPERATION AND ENFORCEMENT OF EXCHANGES AND RELATED REQUIREMENTS, and Subsection c of Section 1321 provides as follows:
(A) a State is not an electing State under subsection (b); or(B) the Secretary determines, on or before January 1, 2013, that an electing State(i) will not have any required Exchange operational by January 1, 2014; or(ii) has not taken the actions the Secretary determines necessary to implement [the exchange]
the Secretary shall (directly or through agreement with a not-for-profit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.
Some states successfully set up health insurance Exchanges of their own under Section 1311, but most of the states took advantage of Section 1321 and allowed the federal government to set up Exchanges for them.
The third section of the law under consideration in King v. Burwell is Section 36B, the part that actually orders the Internal Revenue Service to pay the health insurance subsidies on behalf of “qualified individuals”, that is, persons who fall within that income bracket above the poverty level but less than what is about the median income for an American household. This Section of the Code is divided into two parts. Part (a) says:
(a) In General.--In the case of an applicable taxpayer, there shall be allowed as a credit against the tax imposed by this subtitle for any taxable year an amount equal to the premium assistance credit amount of the taxpayer for the taxable year.
Part (b) of Section 36B defines the amount of the tax credit that must be paid to these qualified taxpayers:
(b) Premium Assistance Credit Amount.--For purposes of this section—(1) In general.-- The term `premium assistance credit amount' means, with respect to any taxable year, the sum of the premium assistance amounts determined under paragraph (2) with respect to all coverage months of the taxpayer occurring during the taxable year.(2) Premium assistance amount.--The premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of—(A) the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer's spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act, or
(B) the excess (if any) of—(i) the adjusted monthly premium for such month for the applicable second lowest cost silver plan with respect to the taxpayer, over
(ii) an amount equal to 1/12 of the product of the applicable percentage and the taxpayer's household income for the taxable year.
The highlighted portion of Section 36B states that the amount of the tax credit is determined in part by a family’s average monthly household income and the monthly premium for health insurance that they “enrolled in through an Exchange established by the State under 1311.”
The question in this case is, does that language mean that the tax refunds – the subsidies for health insurance that nearly 10 million Americans are now receiving – are payable only in states that established their own exchanges under Section 1311, or should the law be interpreted to mean that taxpayers in every state are entitled to these subsidies for health insurance?
Arguing against the subsidies was Michael A. Carvin, a leading Washington attorney.
Arguing in favor of the subsidies was Donald B. Verrilli, the Solicitor General of the United States.
The first issue that was raised at oral argument was whether the persons challenging the tax credits had standing. This issue had been in the news for some time before oral argument, but the federal government did not raise this issue: Instead it was raised by Justice Ginsburg, just as Attorney Carvin started his argument:
MR. CARVIN: Mr. Chief Justice, and may it please the Court:This is a straightforward case of statutory construction where the plain language of the statute dictates the result.JUSTICE GINSBURG: Mr. Carvin, will you please back up, because before we get to a question of statutory construction, as you know, each plaintiff, or at least one plaintiff, has to have a concrete stake in these questions. They can't put them as ideological questions.And we have as -- four plaintiffs. As to two of them, there is a declaration stating “I am not eligible for health insurance from the government,” but there's a question of whether they are veterans eligible for coverage as veterans.
When it was his turn to speak Solicitor General Verrilli elected not to challenge the parties’ standing, stating that he was willing to accept counsel’s representations that their clients would be liable to pay a penalty if they did not purchase health insurance in the states where they lived.
Addressing the merits, Mr. Carvin made a straightforward textual argument, contending that the law says what it means and means what it says: that the tax subsidies for health insurance are available only to persons who live in states that established their own Exchanges, and are not available to persons who live in states served by a federally-operated exchange. Mr. Carvin was immediately challenged by Justice Breyer, who thought that this matter was settled by Section 1321:
MR. CARVIN: …Returning to the merits, the only provision in the Act which either authorizes or limits subsidies says, in plain English, that the subsidies are only available through an exchange established by the State under Section 1311.JUSTICE BREYER: If you're going to elaborate on that, I would appreciate your -- in your elaboration, I've read that, and this statute is like the tax code more than it's like the Constitution. There are defined terms, and the words you just used concern a defined term.As I read the definition, there's a section, Definitions, and it says, quote, The term “Exchange” means, quote, an exchange established under 1311. And 1311 says, An Exchange shall be a government agency, et cetera, that is established by a State. Those are the definitions.So then you look to 1321. And 1321 says, if a State does not set up that Exchange, then the Federal, quote, secretary shall establish and operate such Exchange.So it says, “The Secretary is to establish and operate such Exchange,” the only kind of Exchange to which the Act refers, which is an -- quote, “an Exchange established by a State under 1311.” That's the definition.So the statute tells the Secretary, set up such Exchange, namely, a 1311 State Exchange.MR. CARVIN: Correct.JUSTICE BREYER: And there's nothing else in this statute.MR. CARVIN: Correct.JUSTICE BREYER: So that's throughout what they're talking about. So what's the problem?
Several of the Justices raised the point that if the subsidies are not available to lower-income families then those people will not be able to purchase health insurance – and, in particular, healthy people will not purchase insurance, which would trigger a “death spiral” in the insurance markets as premiums increase and demand decreases. Attorney Carvin denied that there was any legislative history that Congress thought that this would occur, but Justice Kagan reminded him that he had made just such a prediction when he argued before the Court in 2012 in NFIB v. Sebelius:
JUSTICE KAGAN: … You said the -- you said without the subsidies driving demand within the Exchanges, insurance companies would have absolutely no reason to offer their products through Exchanges. And then you said the insurance Exchanges cannot operate as intended by Congress absent the subsidies.
Justice Ginsburg resumed this line of questioning, and Chief Justice Roberts concluded it with humor:
JUSTICE GINSBURG: What Justice Kagan just read to you, you had the idea that the subsidies were essential --MR. CARVIN: No.JUSTICE GINSBURG: -- to have the thing work. That's what you told us last time.MR. CARVIN: What I told you was it wouldn't work as expected, and that's because they thought this deal would work just like the Medicaid deal where all 50 States would say yes, so you would have both of congressional purposes.JUSTICE GINSBURG: Then why in the world would they set up this whole extra thing if they didn't think anybody was going to take it?MR. CARVIN: Well, that -- that was my response to Justice Sotomayor. That -- that is completely unsupported empirical observation made post hoc by amicus. There's no reflection of that in the legislative history. Indeed, the legislative history refutes it.CHIEF JUSTICE ROBERTS: Mr. Carvin, we've heard talk about this other case. Did you win that other case?(Laughter.)CHIEF JUSTICE ROBERTS: So maybe it makes sense that you have a different story today?MR. CARVIN: I'm really glad Your Honor said that.(Laughter.)
A familiar principle of statutory interpretation is that individual provisions of a statute are not read independently; instead, the statute as a whole has to be considered, and each individual provision must be read in the context of the law as a whole in order to give effect to the intent of the legislature.
Attorney Carvin accepted this principle and contended that it supported his position. His central argument was that Congress wanted the states to establish their own exchanges, and that was why Congress purposefully excluded taxpayers in states served by the federal exchange from receiving subsidies:
MR. CARVIN: Just very briefly, Justice Kagan. Very much appreciate it.To -- to respond, we've already talked about context. Section 1311 is a key part of this context. It says in the strongest possible terms we want States to run these Exchanges. If you give unconditional subsidies, then, of course, there is absolutely no incentive for States to do it, and you have fundamentally undermined that distinct statutory purpose. Whereas if you condition subsidies, Congress accomplishes both of its goals. Widespread subsidies, plus State-run Exchanges.In terms of terms of art, again, there is language in the statute which says “Exchanges,” “Exchanges under the Act.” Those phrases naturally encompass both HHS Exchanges and State-established Exchanges.And, yet, the Solicitor General is coming here to tell you that a rational, English-speaking person intending to convey subsidies available on HHS Exchanges use the phrase “Exchanges established by the State.”He cannot provide to you any rational reason why somebody trying to convey the former would use the latter formulation.
Justice Kennedy was concerned that this interpretation of the law would be unconstitutional. He suggested that it would be unconstitutional for Congress to coerce the states into establishing exchanges by imposing such a heavy penalty on the taxpayers of those states:
JUSTICE KENNEDY: Let me say that from the standpoint of the dynamics of Federalism, it does seem to me that there is something very powerful to the point that if your argument is accepted, the States are being told either create your own Exchange, or we'll send your insurance market into a death spiral. We'll have people pay mandated taxes which will not get any credit on -- on the subsidies. The cost of insurance will be sky-high, but this is not coercion. It seems to me that under your argument, perhaps you will prevail in the plain words of the statute, there's a serious constitutional problem if we adopt your argument.
Justice Kennedy returned to this point several other times during the argument.
Justice Sotomayor asked Attorney Carvin why such a significant limitation on the federal subsidies was “hidden” in Section 36B, and whether there was any legislative history to support his interpretation of the law; he responded that the law was clear and that there was no legislative history on either side, and that this limitation was placed in the statute precisely where you would expect to find it:
JUSTICE SOTOMAYOR: My problem -- my problem is that -- the reverse. You're talking about Congress, how -- hiding, borrowing the phrase of one of my colleagues, a -- a -- a huge thing in a mousetrap. Okay? Because do you really believe that States fully understood that they were not going to get -- their citizens were not going to get subsidies if they let the Federal government? What senator said that during the hearings?
Attorney Carvin closed his argument reiterating his position that the language of Section 36B is clear, that it is consistent with the purpose of Section 1311, and that there is no legislative history to the contrary:
MR. CARVIN: I've given you the contextual points before. I think the key one that I'd like to convey to you, Justice Kagan, is Section 1311. You say the -- the statute must work harmoniously. If you provide a -- subsidies to HHS Exchanges, you have essentially gutted Section 1311's strong preference for State Exchanges.What will happen is precisely what did happen under the IRS rule, two-thirds of the States are saying no, we're not going to undertake this thankless task of running these Exchanges with no incentives to do so. So yes, it -- what I have here in terms of what the statute means is 36B quite clearly saying Exchanges are available only on States. I have 1311 explaining why they limited subsidies to that. And there is no contrary legislative history at all.What do they have, an atextual reading of 36B, which they can't explain why anybody would have used those words if they wanted to convey Exchanges, a rule that completely undermines the purposes of -- of 1311 and no supporting legislative history. So under all the legal materials that this Court normally used to discern what statute means, we clearly prevail.
Solicitor General Verrilli made four arguments in support of the position that the statute not only authorizes but requires the Internal Revenue Service to issue tax credits for health insurance to taxpayers in every state.
General Verrilli’s textual argument is rather elegant. It was somewhat buried, not mentioned until most of the way through the argument. Verrilli argued that the language “exchange created by a state under 1311” is not ambiguous and that Section 36B is not the only place in the statute where the term occurs. It is instead a term of art that is repeated throughout the Affordable Care Act to refer to an exchange in a specific state as opposed to the exchanges generally. Justice Alito questioned why the statute didn’t use clearer language:
GENERAL VERRILLI: Well, so the second point is that wherever this provision appears in the Act, “established by the State under Section 1311,” it's doing work; and the work it's doing is saying, what we're talking about is the specific Exchange established in the specific State as opposed to general rules for Exchanges. If you look at the Medicaid Maintenance-of-Effort provision that -- it works the same way.JUSTICE ALITO: Well, why didn't they say “in the State”? That's the phrase you just used, “in the State.” Why didn't they say “in the State”?GENERAL VERRILLI: Because -- I suppose they could have, but it worked perfectly well this way. If you look at the qualified individual provision, it's clearly how they're using it with respect to the qualified individual provision. And with respect to that provision, it says a qualified individual is a person who is located -- who resides in the State that established the Exchange. Clearly, what they're talking about is a geographical reference to the particular State. That's what's going on there and what's going on every time the -- the statute uses that phrase. So it's doing that work, and that's why it's in there.
The second point that Verrilli made, and really his principal argument, is that the intent of Congress was clear. General Verrilli started his argument on the merits by contending that even if Section 36B is ambiguous, then the Court must look to the rest of the law and interpret Section 36B so that it is harmonious with the purpose of the law as a whole. The express purpose of the Affordable Care Act was to provide all Americans with affordable health insurance. And the express purpose of the provisions regarding the creation and operation of the exchanges was to provide flexibility to the states, to give them a choice whether to create an exchange of their own or whether to allow the federal government to create an exchange for them. However, Justice Scalia responded forcefully to General Verrilli’s intent argument:
GENERAL VERRILLI: … If I could now, let me please turn to the merits that summarize what I think are the two key points. First, our reading follows directly from the text of the Act's applicable provisions and it's really the only way to make sense of Section 36B and the rest of the Act. Textually, their reading produces an incoherent statute that doesn't work; and second, our reading is compelled by the Act's structure and design. Their reading forces HHS to establish rump Exchanges that are doomed to fail. It makes a mockery of the statute's express -- status express textual promise of State flexibility. It precipitates the insurance market death spirals that the statutory findings specifically say the statute was designed to avoid, and of course it revokes the promise of affordable care for millions of Americans. That cannot be the statute that Congress intended.JUSTICE SCALIA: Of course it could be. I mean it may not be the statute they intended. The question is whether it's the statute that they wrote. I mean, you know, there -- there -- there are no provisions in the statute that turn out to be ill -- ill-considered and ill -- ill-conceived.
This is a classic conflict between two interpretive principles – two sources of law – Text and Intent. As a textualist Justice Scalia looks to the words of the statute itself, while Solicitor General Verrilli is urging the court to look to the intent of the persons who wrote those words.
A third argument invoked a “canon of construction”, a rule that is used to interpret statutes. The Canon of Constitutional Avoidance requires that if there are two possible interpretations of a statute – one constitutional and one unconstitutional – the courts must choose the one that renders the statute constitutional. Solicitor General Verrilli observed that it would be unconstitutional for the federal government to force the states to create exchanges to enforce federal law – that would violate the “no commandeering” principle. Therefore Section 1321 must be read in conjunction with 1311, giving the states the choice to establish an exchange themselves or allow the federal government to do it for them. Furthermore, said Verrilli, it violates the Constitution for Congress to enact a law withholding funding from the states without adequate notice – and Section 36B does not give the states adequate notice of the fact that if their taxpayers would not qualify for funding if they did not create an exchange. This point was actually first raised by Justice Kennedy:
JUSTICE KENNEDY: And that you then have to invoke the standard of constitutional avoidance.GENERAL VERRILLI: Well, what I was going to say, Justice Kennedy, is to the extent the Court believes that this is a serious constitutional question and this does rise to the level of something approaching coercion, then I do think the doctrine of constitutional avoidance becomes another very powerful reason to read the statutory text our way. Because I do think -- and I do think with respect to the point that Your Honor's making, remember, it's not just -- it's not just a situation in which there is onerous conditions, onerous consequences for State residents. It's also a profound problem of notice here, that, you know, if you read Petitioners' -- if you take Petitioners' reading of the statute, then the idea that States were given added -- you can't possibly justify this as adequate notice to the States.
As Justice Scalia and Attorney Carvin pointed out, however, the canon of constitutional avoidance comes into play only if the statutory language is ambiguous – if the law is clear then no canons are needed to interpret it.
Justice Alito also challenged Solicitor General Verrilli about whether the states that chose not to set up their own exchange were really surprised that their citizens would as a result lose eligibility for subsidies. Verrilli responded that there was strong evidence that no-one thought this was a consequence of letting the federal government set up an exchange for the state:
JUSTICE ALITO: Now, if they were all caught off guard and they were upset about this, you would expect them to file an amicus brief telling us that. But actually, of the 34, only 6 of them signed the brief that was submitted by a number of States making that argument. 23 States, 23 jurisdictions submitted that brief; 17 of them are States that established State exchanges. Only 6 of the States that didn't establish State exchanges signed that brief, how do you account for that?GENERAL VERRILLI: So, I -- I guess I'd make two points about that, Justice Alito. First, you've got 22 States there, States in both camps, all of whom told you that they didn't understand the statute that way.Now, with respect to the other 8 States that filed the amicus brief on the other side, I actually think there's quite an important point that goes to their understanding of what this Act did. Remember, this is an IRS rule that we're talking about here, and the IRS put out a notice of proposed rulemaking saying this is what we intend to do, and several of these States -- Oklahoma, Indiana, Nebraska -- they filed rulemaking comments in that -- in that proceeding. And if you look at those rulemaking comments you will see that they address a number of issues, and they say nothing, nothing about the -- the issue that's before the Court now.So if they really understood the statute as denying subsidies in States that did not set up their own exchanges, that would have front and center in their rulemaking comments, but they said nothing about it and I think that tells you a good deal about where -- what -- what everybody understood that this statute was --
During Solicitor General Verrilli’s time Justice Kennedy raised a fourth argument that would preserve the subsidies in the states with exchanges operated by the federal government. He suggested that if the Affordable Care Act is ambiguous as to whether the subsidies are available in those states, then under the Chevron doctrine the Internal Revenue Service has the authority to interpret the law so as to permit those subsidies. General Verrilli agreed the IRS has broad authority to interpret and implement Section 36B. Chief Justice Roberts then added that if the statute could be interpreted either way then a later administration could withdraw the subsidies in those states, and General Verrilli disagreed with that point:
JUSTICE KENNEDY: And it -- it seems to me a little odd that the director of Internal Revenue didn't -- didn't identify this problem if it's ambiguous and advise Congress it was.GENERAL VERRILLI: So a few points about that with respect to Chevron deference. First, we do think Chevron deference clearly supports the government here and I'll explain why. But before you get to that, you can resolve and should resolve this statute and the statute's meaning in our favor even without resort to Chevron deference. That's what the canon of reading a statute as a whole to make it work harmoniously directs you to do. It's what the very important principles of Federalism that we've been describing here direct you to do. If you think there's a constitutional problem with the statute, it's what the doctrine of constitutional avoidance directs you to do.
In other words, the Solicitor General took the position that Section 36B may be ambiguous, but the statute as a whole is not.
The attorneys cited very little precedent during oral argument because there was little to cite. This is a new statute and the courts and the government have had little experience with it yet. Justice Scalia did ask the Solicitor General whether the Supreme Court had ever interpreted a law in a manner that was contrary to the plain meaning of the text, and Verrilli said yes – in 2000 in the case of FDA v. Brown & Williamson Tobacco Corp., where the Supreme Court held that the FDA did not have the power to regulate the nicotine content of cigarettes even though it did have the power to regulate “drugs” generally. While there is no doubt that nicotine is a “drug,” it was also clear that Congress did not intend for the FDA to be able to regulate it in cigarettes. Considering all of the circumstances the Court found that the intent of the law trumped its text in that case, and Solicitor General Verrilli suggested that the Court should do the same in this case.