by Brianne Gorod, Appellate Counsel for the Constitutional Accountability Center.
* This post originally appeared on the Constitutional Accountability Center's Text & History Blog.
Ever since three-judge panels on the Fourth Circuit and the D.C. Circuit issued conflicting rulings in July on the availability of tax credits under the Affordable Care Act (ACA), the opponents of the law have been trying to rush their case to the Supreme Court. That’s where they apparently think they have their best shot at succeeding in what D.C. Circuit Judge Harry Edwards called their “not-so-veiled attempt to gut” the law. But thanks to an Order just issued by the full D.C. Circuit, their chances of getting the case in front of the Supremes just got a lot lower.
The two cases involved are just the latest salvo in the ACA opponents’ continuing efforts to kill the ACA by any means possible. In these challenges, the opponents of the law argue that the ACA, which was enacted to make health insurance affordable for all Americans, doesn’t permit people to receive the tax credits that actually make it affordable if they purchase their insurance in one of the 36 states that have opted to let the federal government run their Exchange. Thus, they argue, an IRS rule confirming that tax credits are available to all qualifying Americans, regardless of where they live, is invalid under the statute.
It’s an argument that shouldn’t hold water in any court. The opponents of the law rest their argument on one four word phrase—“established by the State”—but ignore the text of the rest of the 900-some page statute that makes it clear that federally-facilitated Exchanges are functionally the same as state-established Exchanges. Even Justice Scalia should recognize that’s no way to interpret a statute. As he explained just last year, “the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Here, reading the words of the statute in context makes clear that tax credits should be available to all qualifying Americans. Fourth Circuit Judge Andre Davis called the argument made by the law’s opponents “tortured” and “nonsensical.”