Obamacare Argument Preview

Steven D. Schwinn, John Marshall Law School

The Court will hear oral arguments tomorrow in King v. Burwell, the case testing whether the Affordable Care Act authorizes the IRS to provide subsidies to purchasers of health insurance on a federally-facilitated exchange. Here's my oral argument preview ("Significance" section is down below), from the ABA Preview of U.S. Supreme Court Cases, with permission:

FACTS

The Affordable Care Act (ACA), or “Obamacare,” is designed to increase the number of Americans covered by health insurance and to decrease its costs. In order to achieve these goals, the ACA requires most Americans to obtain “minimum essential” coverage or to pay a tax penalty to the IRS. (The ACA, of course, contains many other provisions to achieve its goals, most notably the expansion of the Medicaid program. But the minimum-coverage provision, sometimes called the “individual mandate,” is the one most relevant to this case.)

To facilitate the purchase of health insurance, the ACA establishes health care “exchanges,” where individuals can purchase competitively-priced coverage. The Act provides that “[e]ach State shall . . . establish an American Health Benefit Exchange.” 26 U.S.C. § 1311. But it also provides that if a state does not “elect” to create an exchange, the federal government “shall establish and operate such exchange within the State.” 26 U.S.C. § 1321(c)(1). When the plaintiffs filed this case, 16 states plus the District of Columbia elected to set up their own exchanges; the remaining 34 states relied on the federally-facilitated exchange. (The U.S. Department of Health and Human Services (HHS) establishes the federally-facilitated exchange. It’s at www.healthcare.gov.)

To keep health insurance affordable, the Act provides a federal tax credit to low- and moderate-income Americans to offset the cost of insurance policies. The Act provides the credit to individuals who enroll in a health plan “through an Exchange established by the State under Section 1311.” 26 U.S.C. § 36B.

Pursuant to this provision, the IRS promulgated regulations making the tax credit available to qualifying individuals who purchase health insurance on both state-run and federally-facilitated exchanges. The IRS rule says that credits shall be available to anyone “enrolled in one or more qualified health plans through an Exchange.” The rule adopts by cross-reference a definition of “Exchange” by the U.S. Department of Health and Human Services (HHS) that includes any exchange “regardless of whether the Exchange is established and operated by a State or by HHS.”

The plaintiffs,  Virginia residents who do not want to purchase health insurance, challenged the IRS rule, in particular, the provision of tax credits to purchasers on a federally-facilitated exchange. Virginia declined to establish its own health insurance exchange, so the state uses the federally-facilitated exchange. Without a federal tax credit, the plaintiffs would be exempt from the ACA’s minimum coverage requirement under the ACA’s unaffordability exemption. (This provision exempts individuals from the minimum coverage requirement if the cost of health insurance exceeds eight percent of their projected household income.) But with the federal tax credit, and the resulting reduced cost of health insurance, the plaintiffs do not qualify for the unaffordability exemption, and they must either purchase health insurance or pay the tax penalty. (As this goes to press, media reports have raised serious questions whether some of the plaintiffs are actually affected this way, and therefore whether they have standing to bring this suit. So far, neither the parties nor the Supreme Court have formally addressed these questions.)

The district court rejected the plaitniffs’ claims and upheld the tax credit. The United States Court of Appeals for the Fourth Circuit affirmed. (On the same day that the Fourth Circuit issued its ruling, the United States Court of Appeals for the D.C. Circuit held the opposite—that the ACA did not authorize the IRS to provide tax credits to purchasers on a federally-facilitated exchange. The full D.C. Circuit later vacated that ruling and agreed to hear the case en banc. The court then held the case in abeyance pending the outcome of this case.) This appeal followed.

CASE ANALYSIS

In ruling on an agency’s interpretation of a statute, the Court uses the two-step process set out in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). In step one, the Court determines whether statutory language is ambiguous—that is, if it is reasonably susceptible of different interpretations. In making this judgment, courts use all the traditional tools of statutory construction, including the text and context of the provision in question. If the language is clear, “that is the end of the matter, for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”

If the language is ambiguous, however, the court moves to step two. At step two, courts ask whether an “agency’s [action] is based on a permissible construction of the statute”—a highly deferential standard. Courts uphold an agency interpretation so long as it is not “arbitrary, capricious, or manifestly contrary to the statute.” This standard is called “Chevron deference.”

The parties focus principally on the first step. They both argue that the Act’s text, structure, and history give an unambiguous meaning either against tax credits (the plaintiffs) or for them (the government). The parties also argue briefly why the Court should not grant Chevron deference to the IRS (the plaintiffs) or why it should (the government).

The plaintiffs argue that the plain text of the ACA restricts tax subsidies to health insurance purchases through state-run (and not federally-facilitated) exchanges. The plaintiffs point to three provisions: Section 1311, which says that states “shall” establish exchanges; Section 18041(c), which provides that HHS “shall . . . establish and operate such Exchange within the State,” upon a state’s “failure to establish [an] Exchange”; and Section 36B(c)(2)(A) & (B), which authorizes tax subsidies for coverage that is “enrolled in through an Exchange established by the State under section 1311.” The plaintiffs say that these three provisions clearly distinguish between state-run and federally-facilitated exchanges, and just as clearly authorize tax credits only for purchasers through state-run, not federally-facilitated, exchanges.

The plaintiffs assert next that the government’s arguments are meritless and do not override the plain language of the text. The plaintiffs say that just because the ACA authorizes HHS to establish exchanges does not mean that those exchanges are “established by the State” (under Section 36B). They claim that the ACA’s instruction to HHS (under Section 18041(c)) to establish “such Exchange” if a state declines to create an exchange does not mean a state-run exchange (and thus turn a federally-facilitated exchange into a state-run exchange); instead, “such Exchange” only means “an exchange,” whichever entity operates it. The plaintiffs contend that the ACA does not authorize HHS to establish an exchange on behalf of a state (thus making a federally-facilitated exchange a state exchange); instead, it only authorizes HHS to establish a federally-facilitated exchange when a state refuses to establish a state exchange. They say that the ACA’s definition of “Exchange” as one established under Section 1331 does not help the government, but instead just creates confusion and thus clarifies that only exchanges “established by the State” trigger subsidies. And finally the plaintiffs contend that the government’s claim that exchanges are “established by the State” as a matter of law is simply belied by the plain text of the Act.

The plaintiffs argue that other provisions in the ACA support its interpretation. As an initial matter, the plaintiffs claim that Section 36B is the only provision in the ACA that defines the scope of the tax subsidy, and so Section 36B is the only provision that the Court need consult. But the plaintiffs say that other provisions, too, support their interpretation. In particular, the plaintiffs argue that other portions of the ACA expressly deem certain non-state entities (but not the federal government) to be “states,” that other portions treat state-run and federally-facilitated exchanges distinctly, and that other provisions show that Section 36B is the provision that sets the terms of the tax subsidy in all relevant respects. Taken together, the plaintiffs say that the ACA authorizes the tax subsidy only to purchasers on a state-run exchange.

The plaintiffs argue that their interpretation leads to only logical results. They say that conditioning tax subsidies on a state’s creation of an exchange is not inconsistent with Congress’s desire to extend subsidies nationwide. Indeed, they say, that might be the most effective way to achieve Congress’s goal. That’s because tax subsidies, so limited, provide a powerful incentive for states to create their own exchanges, and thus to extend subsidies nationwide. (The plaintiffs point to the ACA’s Medicaid expansion provision as an illustration of how the same ACA uses incentives to states to achieve policy objectives. The plaintiffs claim that the ACA uses tax subsidies for purchasers on a state-exchange to create a similar kind of incentive.) The plaintiffs argue that the ACA’s legislative history supports this interpretation, and they say that its interpretation harmonizes with other provisions in the ACA.

Finally, the plaintiffs argue that Chevron deference cannot save the IRS rule. They say that the text is unambiguous (as above). They also say that an act requiring tax credits must be unambiguous. And they claim that the IRS has no authority to interpret Section 36B, in any event, because Section 36B is codified in Title 42 of the U.S. Code and not the Internal Revenue Code. (For similar reasons, they claim that HHS has no authority to interpret tax laws.)

In response, the government argues first that the Act’s text shows that tax credits are available through both state-run and federally-facilitated exchanges. The government says that “an Exchange established by the State” in Section 36B is a term of art in the Act that includes both state-run and federally-facilitated exchanges. It says moreover that the phrase “such Exchange” in Section 18031(b)(1) means that a federally-facilitated exchange stands in for a state-run exchange, and that therefore tax credits are available under Section 36B to purchasers on both. The government contends that this reading is the only reading that would allow the federally-facilitated exchange to run just like a state-run exchange—and that even the plaintiffs acknowledge that the exchanges should function the same. Finally, the government says that other provisions of the Act—including the Act’s definition of “Exchange” as “an American Health Benefit Exchange established under section 18031”—support its interpretation.

The government argues that the Act’s structure and design confirm its interpretation. It says that nationwide tax credits are essential to the Act’s insurance-market reforms—and that the Act could not achieve its dual goals of increasing coverage and reducing costs without it. Indeed, given the Act’s other provisions, the government says that the plaintiffs’ position “would have disastrous consequences for the insurance markets in the affected States.” Moreover, the government contends that the availability of tax credits in every state is essential to the ACA’s model of cooperative federalism. The government says that the plaintiffs’ reading transforms the ACA’s promise of state flexibility regarding exchanges into a threat that states would suffer severe consequences (lack of affordable health insurance for low- and moderate-income residents), without clear warning from Congress.

The government argues that the history of the Act supports its interpretation, too. The government says that it was well understood when the ACA passed that some states would not establish exchanges for themselves. The government also says that the tax credits are not a condition on a federal spending program available to the states (and thus do not operate as an incentive for states to establish their own exchanges); instead, they are independent federal tax credits, available to federal taxpayers, by virtue of their purchase of health insurance on an exchange. And the government says that the legislative record confirms that Congress intended tax credits to apply in every state.

The government argues that the petitioners’ position would lead to contradictions and other absurd results, given the way other provisions in the Act work. Most notably, the government says, if the plaintiffs’ interpretation were correct, no individual would be eligible to purchase insurance on a federally-facilitated exchange, and no individual-market plans could be sold there. That’s because only a “qualified individual” can purchase individual-market policies on an exchange, and the Act defines “qualified individual” as one who “resides in the State that established the Exchange.” 42 U.S.C. § 18032(f)(1)(A)(ii). Under this definition, there are no qualified individuals in a state with a federally-facilitated exchange.

Finally, the government argues that even if the Act contained an ambiguity, the Court should grant Chevron deference to the IRS interpretation.

SIGNIFICANCE

This case is easily one of the most important cases of the Term, and even of the last several Terms. That’s because a ruling for the plaintiffs would mean that more than eight million people (and perhaps many more) could lose their health insurance, because they would lose their tax credit to purchase insurance at an affordable rate on a federally-facilitated exchange. It would mean that health insurance rates could skyrocket in states with a federally-facilitated exchange as much as 47 percent, according to a recent Rand Corporation study. And it would undermine a critical component of the Affordable Care Act, and probably (as a practical matter) lead to its ruin.

On the other hand, a ruling for the government would only keep the ACA operating as it is, forcing an unspecified (but probably very small) number of individuals to continue to purchase unwanted health insurance with the help of a federal tax credit. To be affected by a ruling for the government, an individual in a state with a federally-facilitated exchange, who did not want health insurance, would have to have just the right income so that the federal tax credit would push them out of an unaffordability exemption to the minimum coverage requirement. Opponents of the ACA who engineered this suit reportedly had difficulty finding individuals who fell into this category to act as plaintiffs. This may be an indication of just how few people are likely to be affected by a ruling for the government. It may also be further evidence that the real purpose of the case is not to protect these plaintiffs, but rather to dismantle the ACA.

Recognizing the importance of the case, amici too numerous to list here have weighed in on both sides. (The medical and insurance industries, at least so far as they participated in this case, favor the government. The U.S. Chamber of Commerce is conspicuously absent from the case.) Print periodicals, blogs, and web-sites are filled with analyses, commentaries, and opinions on the case. Not surprisingly, opinions in these media tend to divide along party lines, revealing just how political this case is.

The Court has commonly accepted tools of statutory construction to help it sort this case out. And the parties have not seriously contested those tools. (Even strict textualists like Justices Scalia and Thomas have said that in a statutory case like this courts look to the language and the broader statutory context. The only real debate is over the significance of legislative history. But the justices probably don’t need legislative history to rule (one way or the other) in the case, anyway.) But just because there is agreement on the tools, that doesn’t mean that the case will be simple, or that the justices will all agree on the result. Indeed, as we have seen, the parties have interpreted the Act very differently, even using the same, or similar, tools of statutory construction. Justices on the Court are likely to divide sharply on the outcome, too, even if they apply the same tools.

Whatever the Court says, the Court’s ruling in the case certainly won’t end debates over the ACA. If the plaintiffs prevail, supporters of the ACA will move quickly to amend the Act to authorize tax credits for purchasers on federally-facilitated exchanges, or to urge all states to create their own exchanges, or both. But there is little evidence that these tactics will work: the Republican-controlled Congress is unlikely to amend the Act, at least without using the case as a bargaining chip to exact significant concessions, which themselves would likely destroy the ACA; and states that declined to create their own exchanges would have little increased incentive to create an exchange (because they would recognize that the ruling would effectively unravel the Act). If the government prevails, opponents of the ACA will continue to rail against it, and vote against it in Congress. But unless and until they garner sufficient votes to override a certain veto by this president, or unless and until an opponent of the ACA moves into the White House, with a win here, the ACA will (continue to) be the law.

One final point: As this goes to press, there are serious questions, raised by Mother Jones and The Wall Street Journal, whether the plaintiffs suffered the kinds of harms that they alleged, and therefore whether they even have standing to bring this case. While neither the parties nor the Court have formally addressed the plaintiffs’ standing during this appeal, the government or the Court could raise it at any time. If so, and if the Court ultimately rules that the plaintiffs lacked standing, the Court would not address the merits of the case, thus leaving the tax credits comfortably in place, at least until opponents of the ACA can bring another case. That could happen quickly, if the D.C. Circuit resurrects its case. Or it could happen never, if opponents have the same standing problems in the D.C. Circuit case and if they have the same difficulties finding new plaintiffs that they had in this case.