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As everyone knows, the Supreme Court has agreed to take on the King appeal.  This is the 4th Circuit case where the appeals court ruled that the Moops did not invade Spain, and the IRS can send tax rebate subsidies to anyone who has an income of less than 400% of federal poverty line that are bought on Healthcare.gov.  I don’t have much to say that is not said by either Neil Seigel or JoeyFisher at Balkinization:

Neil Seigel:

Halbig and King (plus the Indiana and Oklahoma cases) are different. I can accept as reasonable, even if ultimately unpersuasive, the argument that the relevant provisions of the ACA are ambiguous. What I cannot accept as reasonable or responsible, however, is the argument—accepted by the D.C. Circuit panel majority in Halbig—that the ACA Congress clearly and unambiguously accomplished what no Member of Congress, no one in the Congressional Budget Office, none of the four dissenting Justices in NFIB v. Sebelius, and no state official realized that Congress had accomplished when it passed the ACA: self-destructively limit the tax subsidies that make health insurance affordable for millions of Americans to those who have the good fortune of happening to reside in states that set up their own health insurance exchanges.

Yes, the statute provides that the subsidies are to be calculated in part based on the cost of the monthly premium for the health insurance plan that an individual buys “through an Exchange established by the State under [Section] 1311” of the ACA. 26 U.S.C. §36B(b). But for goodness sake, that is an odd place in the statute for Congress to say—no, for Congress to whisper—that subsidies are not available in federally facilitated exchanges, thereby placing the viability of the entire statute in jeopardy if state officials decline to create exchanges. The part of the law that determines who is eligible for the subsidies—as opposed to how they are to be calculated—does not distinguish between state and federally facilitated exchanges. See 26 U.S.C. §36B(a).

More importantly, Section 1311 purports to require each state to establish an exchange: “Each State shall, not later than January 1, 2014, establish an American Health Benefit Exchange (referred to in this title as an ‘Exchange’)[.]” The section then defines an “Exchange” as an entity that necessarily has been established by a state: “An Exchange shall be a governmental agency or nonprofit entity that is established by a State.” See also § 1563(b) (stating that “[t]he term ‘Exchange’ means an American Health Benefit Exchange established under [§] 1311”). Section 1321 later makes plain that Section 1311 must be taken stipulatively, not literally. That is, a state may, as a matter of fact, “elect” to establish an exchange or not, and if it does not, then the federal government “shall . . . establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements” (my emphasis).

In other words, the part of the ACA that uses the “established by the State” language asserts by definition, regardless of the fact of the matter, that the state is establishing the exchange.

Joey Fisher

As a matter of statutory interpretation, the plaintiffs’ argument in King/Halbig—that the ACA as a whole clearly requires no subsidies to go to anybody in a state with a federal exchange—is sufficiently implausible that I think it is fair to characterize it as fundamentally a political argument….while a challenge to an IRS regulation interpreting the language of the ACA is, on its face, simply a matter of statutory interpretation, it seems pretty clear that the King case is about more than that—not only in the eyes of the plaintiffs but also in the eyes of those who voted today to grant cert….The most cynical interpretation is that this is not high politics, but low politics. In other words, the principle is that Obama’s Affordable Care Act must fall because Obama and his party must lose….Or maybe the principle is not Lochner revivalism. Maybe instead it is about federalism. This interpretation proceeds as follows: view King through the lens of the Medicaid expansion portion of the Court’s decision in NFIB v. Sebelius. In some ways that’s the closest fit. In that portion of the case, many Justices seemed inclined to turn the Affordable Care Act into a very different kind of federal-state program than the one enacted by Congress—one in which the states could decide for themselves whether they wished to expand Medicaid or keep it as it was. The plaintiffs in King, similarly, would create a system, never contemplated by Congress, that would allow states to opt in—or not, as they choose—to the federal subsidies for purchasing health insurance on the exchanges. Just as many states now refuse the Medicaid expansion, states would be empowered by King to block all federal subsidy money for their citizens by declining to set up a state exchange.

Are you fucKING kidding mePost + Comments (67)