by Neil Kinkopf, Professor of Law, Georgia State University.
The House of Representatives has passed over 50 measures to repeal the Affordable Care Act. The Supreme Court hasn’t yet entertained quite that many challenges, but it seems intent on catching up. Having resolved the major constitutional controversies, the latest challenge, King v. Burwell, is statutory.
To understand the arguments and the stakes in this case, we have to first take a step back and review how the ACA works. The ACA requires (almost) all individuals to have qualified health insurance. This requirement of nearly universal coverage is crucial to making the Act work. To make health insurance affordable, the Act provides subsidies to income-eligible individuals. To make health insurance available, the ACA seeks to establish a marketplace – an exchange, in the terms of the Act – in each state. The Act contemplates that each state government will establish an exchange. If a state government fails to establish an exchange, the federal government is mandated to step in and establish an exchange for the state.
The ACA grants subsidies to income-eligible individuals who purchase insurance on “an exchange established by the state.” This is the key phrase, for the challengers assert that it refers exclusively to exchanges established by state governments. If that interpretation is correct, the consequence is that individuals in states whose exchange is established by the federal government (because their state government refused or failed to establish one) are ineligible for the insurance subsidy. This, according to the law’s proponents, would gut the ACA, rendering health insurance unaffordable for millions of Americans. The law’s challengers reply that the meaning of the phrase is plain and that meaning must prevail. There are many excellent posts demonstrating that the challengers’ plain meaning reading is inconsistent with the text and structure, not to mention the purpose and intent, of the ACA. I do not wish to repeat those arguments. Instead, I want to examine whether the challengers’ reading of the statute actually captures the plain meaning of the key phrase without resorting to the ACA’s broader structure and context (which, I hasten to add, are essential components of proper textualist, plain meaning analysis).