Affordable Care Act

  • March 7, 2015
    Guest Post

    by Rob Weiner, formerly Associate Deputy Attorney General In the United States Department of Justice, is a partner at Arnold & Porter LLP. This post first appeared at Balkinization.

    During the Supreme Court oral argument in King v. Burwell, the challengers persisted in claiming that the language of the Affordable Care Act is absolutely clear, that the principle of constitutional avoidance, as well as Chevron deference and any other relevant interpretive presumptions are unavailing because there is one and only one possible interpretation of the key provision at issue, Section 36B of the Internal Revenue Code.  That is in fact what the challengers must show—that their reading of the statute to deny subsidies in States with Federal Exchanges is incontrovertible. 

    But four Justices (apparently), the IRS, the Solicitor General, 22 States, and leading academic experts in statutory interpretation applying the definitions in the Act have read this same language to mean that tax subsidies are available in all States.  They have drawn this conclusion from the text of the Act itself, not by rewriting the language to promote the statutory purpose, but by giving it what they have concluded is a reasonable—in fact, compelling—interpretation.  Of course, the fact of a dispute regarding the meaning of statutory provisions does not by itself show the issue to be contestable.  But here, there is a critical mass of able, respected readers of the statute who differ with the challengers’ conclusion.  To label the interpretation by these readers as impossible, at odds with the English language, or nonsensical is to deny either their literacy or their candor.  Neither is in doubt. 

    As Justice Kennedy suggested during the argument, the clarity of the statute is also measured against the constitutional requisites of cooperative federalism.  That is another reason the Government should prevail in King.  As the challengers read the law, residents of States that fail to set up insurance Exchanges do not receive tax subsidies to help them afford health insurance, but those States remain subject to the insurance market reforms requiring insurance companies to offer insurance without regard to preexisting conditions and to price insurance based on community characteristics rather than the individual customer’s health situation.  If adopted, the challengers’ interpretation would send insurance markets in those States into a death spiral and impose hardships on millions of people. 

  • March 6, 2015
    Guest Post

    by Timothy S. Jost, the Robert L. Willett Family Professor of Law, Washington and Lee University School of Law.

    *This piece originally appeared on The Huffington Post.

    One of the Red Herring flopping about on the deck of King v. Burwell is the analogy of the territorial exchanges. The central legal question of King v. Burwell is whether the federally facilitated fallback exchanges created by section 1321 of the Affordable Care Act can be the "Exchange established by the State under section 1311" mentioned in section 1401 of the ACA, which authorizes the grant of premium tax credits. The plaintiffs say it cannot be--only a state-operated exchange can be an "Exchange established by the State." The federal government, on the other hand, asserts that under section 1321, if a state that elects not to establish the Exchange it is required to establish under section 1311, the federally facilitated exchange becomes "such Exchange" with all the powers and authorities of the state exchange, including the authority to grant premium tax credits.

    Section 1323 of the ACA creates a third kind of exchange, the territorial exchange. This section provides:

    (a) IN GENERAL.--A territory that--(1) elects consistent with subsection (b) to establish an Exchange in accordance with part II of this subtitle and establishes such an Exchange in accordance with such part shall be treated as a State for purposes of such part and shall be entitled to payment from the amount allocated to the territory under subsection (c) . . .

    The plaintiffs argue that 1) this section demonstrates that Congress knew how to explicitly state its intention when it meant for an exchange that was not a state exchange to be treated like a state exchange (and explicitly did not do so when it authorized federally facilitated exchanges), and 2) that the phrase "such Exchange" in 1321 did not make the federally facilitated exchange into a state exchange for purposes of section 1401, just as the phrase "such an Exchange" did not make the territorial exchanges into state exchanges.

    This all sounds neat, but in fact shows a profound lack of understanding as to how the Affordable Care Act works, and in particular its provision for the territories.

    The territories--for these purposes Puerto Rico, The U.S. Virgin Islands, American Samoa, Guam, and the Northern Mariana Islands--have a unique status. For some purposes they are treated like states under American law, for other purposes like foreign countries. This is true under the ACA.

  • March 6, 2015

    by Caroline Cox

    Former Alabama Supreme Court Chief Justice Sue Bell Cobb writes for Politico on how the influx of money into the American judicial system is making it harder to have fair courts. Justice Cobb also provided the introduction for the 2013 ACS report Justice at Risk.

    Georgetown law school professor David Cole examines newly declassified documents that shed more light on the use of turtore in the "war on terror" during the administration of George W. Bush. In an extensive piece for NYRblog, Cole says the "declassified CIA documents depict an agency whose leadership knew that what it was doing was wrong, and that therefore was never fully confident that the authorizations it received from the executive branch were enough -- even though they came from the president, the vice-president, the attorney general, and the national security adviser, as well as from the senior lawyers in all of those offices."

    Coverage of King v. Burwell continues with Greg Sargent discussing in The Washington Post how it is unlikely that Congress could provide a legislative fix if the Court decides to invalidate the Affordable Care Act subsidies.

    Oliver Roeder argues at Five Thirty Eight that based on Wednesday’s oral arguments the chances of the Supreme Court saving the Affordable Care Act are looking up.

    At The Economist, Steven Mazie dissects the oral arguments and considers how the Court will split on the case.

    Marty Lederman provides some insight into the argument of coercion of the states and the federalism canons in King v. Burwell at Balkinization.

  • March 5, 2015

    by Caroline Cox

    Robert Barnes reports for The Washington Post on the oral arguments for King v. Burwell and observes that the Court seemed to split along ideological lines in questioning during the case.

    Linda Greenhouse argues in The New York Times that the very nature of the Supreme Court will change if it chooses to overturn the Affordable Care Act.

    At NPR, Mara Liasson explains why both Republicans and Democrats should be concerned about the outcome of King v. Burwell.

    Mark Joseph Stern writes at Slate on the recent Justice Department report that finds Ferguson police have a history of bias towards African Americans and disregard for constitutional rights.

    At Democracy Now, Juan González and Amy Goodman discuss how Ferguson illustrates the importance of undoing the criminal justice system of “racial control” with Michelle Alexander, author The New Jim Crow: Mass Incarceration in the Age of Colorblindness.

  • March 4, 2015

    by Jeremy Leaming

    Following oral argument in the latest effort to topple the Affordable Care Act, SCOTUSblog’s Lyle Denniston says a major part of the private discussions among Supreme Court justices will center on the harm they could do to the nation’s health care system if a majority buys the challengers’ argument in King v. Burwell.

    ACS President Caroline Fredrickson on MSNBC’s “The Cycle,” tore into the challengers’ statutory based argument, saying it strays far from precedent on statutory interpretation.

    Fredrickson, discussing a federalism-based question from Justice Anthony Kennedy during the March 4 oral arguments, said it would be absurd to believe Congress placed into the health care legislation a “ticking time-bomb,” which would strip tax support from large numbers of the currently insured in an effort to coerce 34 states to set up their own exchanges.

    Instead Fredrickson argued that the justices should look at the text within its context. This is basic statutory interpretation learned early in law school, she said.

    See video of “The Cycle," below: