by Timothy S. Jost, Professor of Law, Washington and Lee University School of Law
It is arguable that defenders of the Affordable Care Act lost the Supreme Court in 2012 on the Commerce Clause issue in NFIB v. Sebelius when the media accepted the plaintiffs’ meme that the case was really about whether the government could make Americans eat broccoli rather than about protecting insurance markets from adverse selection and providers from free riders. With another ACA case before the Supreme Court, the challengers are once again aggressively marketing their narrative to the media. It is important that the media approach their claims skeptically, or at least intelligently, so that the American public, and the Court, understand what the case is really about—and what it is not about. So let’s get this much straight:
Congress knew that not all states would operate exchanges and intended the federally facilitated as well as the state operated exchanges to offer premium tax credits.
As is amply documented in the briefs filed in these cases by the members of Congress who drafted the ACA, Congress understood that a federal fallback exchange was not only necessary for constitutional reasons because Congress could not force the states to operate exchanges, but also for practical reasons because some would not. The challengers have made up a narrative about Congress limiting premium tax credits to state exchanges to bludgeon them into setting up their own exchanges, but there is absolutely no support for this in the legislative record.
If the Court chooses to ignore Congressional intent, it cannot ignore the text of the statute.
Although congressional intent is clear, it is not essential for the Court to look at the legislative history, or even to consider Congress’ clear purpose to extend coverage to all Americans, to reach the right result. If the Court looks only at the text of the ACA—but looks at the entire text and doesn’t merely cherry pick one phrase—this is an easy case. Sure, the words “established by the State” are found in the ACA, but the ACA also provides that federally facilitated exchanges have all of the powers of state operated exchanges; federally facilitated exchange effectively and by definition becomes the “Exchange established by the State”: and HHS must ensure that “residents of each State may apply for enrollment in, receive a determination of eligibility for participation in, and continue participation in” the premium tax credit program. Legitimate textualism requires attention to the entire text. Literally dozens of provisions of the ACA become incongruous if a court focuses only on the “established by the State” phrase without understanding its context.