Amicus Briefs Show Just How Counterintuitive The Legal Arguments In King Are

Linda Greenhouse: Having Read The Briefs, “I'm Beginning To Think For The First Time That The Government May Actually Prevail.” In a recent New York Times op-ed, former Supreme Court reporter Linda Greenhouse explained that the suit is based on an “acontextual reading of the law” -- specifically, a misreading of a subclause to claim that government subsidies are available only to consumers who purchased insurance through exchanges established by states and not to those who bought plans through the federal exchange. Cherry-picking phrases and stripping them of context is contrary to the Court's established process for interpreting statutory ambiguities, as numerous amicus curiae (“friend of the Court”) briefs have pointed out:

Every justice subscribes to the notion that statutory language has to be understood in context. Justice Scalia said it from the bench just last month, during an argument about the proper interpretation of the federal Fair Housing Act. “When we look at a provision of law, we look at the entire provision of law, including later amendments,” Justice Scalia said. “We try to make sense of the law as a whole.”

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Across the ideological spectrum, the court's opinions are filled with comments like Justice Scalia's. Justice Clarence Thomas wrote in a 1997 opinion that in a statutory case, courts have to look at “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”

Chief Justice John G. Roberts Jr., arguing for contextual interpretation in a 2009 opinion, observed that “the sun may be a star, but 'starry sky' does not refer to a bright summer day.”

Justice Anthony M. Kennedy wrote in a 2006 opinion that an interpretation of a single statutory provision “is persuasive only to the extent one scrutinizes the provision without the illumination of the rest of the statute.”

These examples all come from a brief filed on the government's behalf by a group of law professors who are specialists in statutory interpretation, administrative law or constitutional law. One is Charles Fried, a law professor at Harvard who served as solicitor general during the second Reagan administration.

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To people who care about this case and who want the Affordable Care Act to survive, I have a bit of advice: Before you give up, read the briefs. (Most, although not all, are available on the website of the American Bar Association.) Having read them this week, I'm beginning to think for the first time that the government may actually prevail. [The New York Times, 2/5/15]

Experts Explain In Their Briefs Why Insurance Tax Credits Are Clearly Available In Both The Federal And State Exchanges

Administrative Law Professors: Challengers' “Crabbed Reading Does Not Hold Up” When The Subsidies Provision “Is Read -- As It Must Be -- In Its Statutory Context.” Former solicitor general Charles Fried, joined by several other law professors who specialize in administrative law and statutory construction, explained in their brief that “when properly read in context,” the ACA subsidies provision at issue in King “does nothing to prohibit tax credits on HHS-created exchanges.” In fact, the “ACA's definitional provisions” make clear that the federal and state exchanges are the same for purposes of tax credit availability:

[T]extualism is not hyperliteralism, and textualists do not read the words of a statute in a vacuum. To the contrary, “reasonable statutory interpretation must account for both 'the specific context in which ... language is used' and 'the broader context of the statute as a whole.'” Thus, a statutory phrase that has one apparent meaning when read in isolation may have a different meaning when read in the context of the statute as a whole.

Section 36B, which sets forth the formula for calculating tax credits under the Act, defines a “coverage month” as one in which the taxpayer is covered by a plan purchased through an “Exchange established by the State under section 1311.” Based solely on that provision, Petitioners contend that the ACA prohibits the IRS from providing tax credits to customers who purchase insurance through HHS-created exchanges. But Petitioners' crabbed reading does not hold up when Section 36B is read -- as it must be -- in its statutory context.

To begin with, the ACA's definitional provisions make clear that, when the HHS Secretary creates exchanges for states that elect not to do so, those exchanges are, by definition, exchanges “established by the State.” That reading is supported by other provisions of the ACA that (1) refer to both state- and HHS-created exchanges as exchanges “established by the State,” or (2) otherwise presume that federal tax credits are available on HHS-created exchanges.

Petitioners spill a lot of ink explaining why their interpretation of Section 36B would not render those other provisions of the Act wholly absurd. But when this Court said that statutory interpretation is a “holistic endeavor,” it did not mean that judges should interpret words of a statute in isolation, and only then, after arriving at an interpretation, ask whether that interpretation would render other provisions absurd. Rather, the directive that the “words of a statute must be read in their context,” means just that: A provision must be read, in the first instance, in light of its statutory context. And when properly read in context, Section 36B does nothing to prohibit tax credits on HHS-created exchanges. [Brief Of William N. Eskridge, John A. Ferejohn, Charles Fried, Lisa Marshall Manheim, And David Strauss As Amici Curiae In Support Of Respondents, 1/28/15]

Members Of Congress: “It Would Make No Sense To Hide Such An Important Condition In Such An Obscure Subsection If Our Intent” Was To Deny Subsidies On The Federal Exchange. In their brief, former and current members of Congress argue that the challengers' interpretation of the subsidies clause was “never contemplated by the legislators who enacted the law, nor by the state officials charged with deciding whether to establish their own Exchanges.” They also state that it was not their intent to “thwart the overall statutory scheme” and deny subsidies to millions of Americans:

Because the textual basis for this argument is so weak (Petitioners isolate a four-word phrase contained in two subclauses rather than considering the text of the statute as a whole), they impute to Congress -- in effect, to congressional amici themselves -- the purpose of deliberately prescribing tax credits only on state-run Exchanges, as a means of encouraging States to set up their own Exchanges. This objective, they claim, was so important that Congress drafted the ACA in a way that would guarantee the collapse of non-state-run Exchanges, even though that would drastically curb, rather than broaden, access to health insurance. Amici submit this brief to demonstrate that the purpose attributed to the statute by Petitioners was, in fact, never contemplated by the legislators who enacted the law, nor by the state officials charged with deciding whether to establish their own Exchanges.

The text, purpose, and history of the statute all support amici's position. To start, the provision prescribing the credits explicitly makes them available to all “applicable taxpayers,” and defines “applicable taxpayers” based on income, not State of residence. Petitioners rely on one four word phrase in two subclauses setting out the formula for calculating the amount of the tax credit to argue that tax credits should not be available in States with federally-facilitated Exchanges. Even in isolation, the language on which Petitioners rely provides, at best, ambiguous support for their interpretation, but read in the context of the remainder of the provision, not to mention the statute as a whole, it is clear that the provisions at issue plainly prescribe tax credits and subsidies for participants in all Exchanges, federally-facilitated and state-run.

In any event, based on our collective experience in Congress, congressional amici know that it would make no sense to hide such an important condition in such an obscure subsection if our intent, as Petitioners claim, was to make clear to state legislators that premium assistance credits and subsidies would be unavailable if their State failed to set up its own Exchange. Indeed, congressional amici know from their experience drafting and enacting this legislation that Congress imposed no such condition. The purpose of the tax credit provision was to facilitate access to affordable insurance through all Exchanges, state-run or federally-facilitated, and to ensure that all Exchanges could work with other fundamental components of the law in order to provide universal access to insurance. It was not, as Petitioners would have it, to incentivize the establishment of state Exchanges above all else, and certainly not to thwart the overall statutory scheme and Congress's fundamental purpose of making insurance affordable for all Americans. [Brief Of Members Of Congress and State Legislatures As Amici Curiae In Support Of Respondents, 1/28/15]

Bipartisan Economic Scholars: Challengers' Reading Of The ACA “Would Destabilize The Insurance Market And Frustrate Congress's Clearly Stated Goal Of Broadening Coverage.” As a group of economists from both sides of the aisle explained in their brief, the subsidies play an essential role in supporting the effectiveness of the ACA -- the third leg of a “three-legged stool.” Without the subsidies, the economists argue, the health insurance market would enter a “death spiral” -- a “dysfunctional” outcome that Congress never intended:

Congress well understood the importance of subsidies to the ACA reforms. The basic economic framework undergirding that statute can be analogized to a stool with three legs. All three legs are necessary to foster stable, functioning insurance markets consistent with Congress's goal of broad, affordable coverage. The first leg is a series of non-discrimination rules that prevent insurers from charging higher premiums or denying coverage to people with pre-existing conditions or certain other characteristics that raise the likelihood that they will need health care services. The second leg is the individual mandate, which requires nearly everyone, sick or healthy, to buy insurance they can afford. That avoids a situation in which only the sickest individuals sign up for insurance, resulting in increasing premiums to cover these costly customers. Premium subsidies comprise the third leg. These make insurance affordable for many who could not otherwise afford it, ensuring that all who are subject to the individual mandate have the means to comply with it. For that reason, Congress included affordability protection as part of the mandate, exempting those for whom insurance would be too expensive without subsidies.

Petitioners' interpretation would chop out the third leg from this three-legged stool in all States where the federal government operates an Exchange, destabilizing the insurance market in those States and frustrating Congress's clearly stated goal of broadening coverage. Without premium subsidies, millions of people will be exempt from the mandate altogether or will choose to pay the tax penalty rather than purchase costly insurance. Yet the sickest people will continue to sign up for insurance and insurers will have to cover them. The resulting higher premiums would threaten an adverse-selection “death spiral”: as premiums increase, more and more healthy people will be exempt from the mandate and will forgo buying insurance, or, if not exempt, will choose to pay the tax penalty. As a result, sick people would form an ever-greater portion of the risk pool, causing premiums to rise and enrollment to fall. Such a result would be incompatible with the structure of the ACA's provisions, as well as the wealth of legislative history showing that Congress understood premium subsidies to be an indispensable part of the ACA's reforms.

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Petitioners do not contest that their position will result in millions of Americans losing insurance. Instead, they contend that Congress intended to deny subsidies to those individuals -- using those individuals' hardship and the prospect of unstable insurance markets to bludgeon States into setting up their own Exchanges. In other words, Petitioners ask this Court to believe that Congress went to the trouble and expense of enacting federally operated Exchanges that it knew would be dysfunctional and doomed to failure from the outset. If Congress had truly wanted to deny benefits to citizens of States that did not set up their own Exchanges, then it would not have provided for federally facilitated Exchanges at all. [Brief Amici Curiae For Bipartisan Economic Scholars In Support Of Respondents, 1/28/15]

Heath Insurance Industry Group: “There Is No Practical Reason To Distinguish Between State- And Federally-Operated Exchanges.” America's Health Insurance Plans (AHIP) also filed a brief supporting the availability of subsidies for all consumers -- despite the fact that the conservative industry group had previously opposed the passage of the ACA in 2010. In its brief, AHIP explained that without the subsidies, insurance markets would implode and consumers in states without exchanges would be “significantly disadvantaged” and left “with a more unstable market and far higher costs than if the ACA had not been enacted”:

Premium tax credits (and the related shared responsibility payments) are essential components of an actuarially-viable marketplace because of their integral relationship to the ACA's market reforms. There is no practical reason to distinguish between State- and federally-operated exchanges in this regard. The ACA's shared responsibility obligation and eligibility for premium assistance tax credits are governed by nationally-established standards with payment from the federal treasury, regardless of which sovereign administers the particular exchange. It makes no difference to the market reforms whether the exchange is State- or federally-operated. Likewise from the perspective of consumers, State- and federally-operated exchanges perform the same basic functions -- facilitating the comparison of plan choices, the determination of eligibility, and the enrollment process.

Delinking the three integrated components of the ACA's reform package in States with federally-facilitated insurance exchanges would create severely dysfunctional insurance markets in those 34 States, significantly disadvantaging millions of consumers in those States. Far beyond the question of whether certain individuals could obtain subsidies on their premiums, the lack of tax credits in the [federally-facilitated exchanges] would alter the fundamental dynamics of those markets in a manner that would make insurance significantly less affordable even to those who would not rely on subsidies. It would leave consumers in those States with a more unstable market and far higher costs than if the ACA had not been enacted. [Brief Of America's Health Insurance Plans In Support Of Respondents, 1/2015]

National Women's Law Center: “Historically, Women Are Substantially More Likely To Forgo Health Care Because Of Cost.” As the National Women's Law Center's brief pointed out, the ACA was passed at least in part “to provide women with more affordable access to health insurance and health care” because "[i]n the past, health insurance has frequently failed to cover women's unique health needs." According to the NWLC, “Over 9 million women, who would otherwise go without affordable health insurance, are eligible to benefit from [subsidies], including a disproportionate number of women of color”:

Women have long faced great difficulty obtaining comprehensive, affordable health coverage. In the past, health insurance has frequently failed to cover women's unique health needs, leaving women with less access to health care services. Across America, women earn lower wages than men and suffer from higher rates of poverty. And historically, women are substantially more likely to forgo health care because of cost.

Many of the ACA's key provisions were designed to remedy these disparities and to provide women with more affordable access to health insurance and health care. Indeed, improving women's health and ending sex discrimination in health care are key purposes of the ACA. For example, the ACA implemented key market reforms, ended so-called “gender rating,” required health plans to cover maternity care and preventive services important to women, and prohibited sex discrimination in health care and in the health insurance industry.

Those reforms have gone a long way toward protecting women from discriminatory health insurance practices, making health coverage more affordable and easier to obtain, and improving access to many of the health services women need. And those reforms depend upon two other components of the ACA -- the individual responsibility provision and the provision of tax credits to help low- and moderate-income women and families purchase health insurance, including on federally-facilitated Exchanges.

These tax credits are critical. Over 9 million women, who would otherwise go without affordable health insurance, are eligible to benefit from them, including a disproportionate number of women of color. The ACA's tax credits provide women with access to comprehensive health benefits, including women's preventive services, maternity coverage, and other services critical to women's health. In 2014, the vast majority of enrollees in the federally-facilitated Exchanges used tax credits to purchase coverage, with women making up the majority of enrollees in these exchanges. [Brief For Amici Curiae National Women's Law Center, Et Al. In Support Of Respondents, 1/28/15]

Pediatricians And Family Physicians: Without Subsidies, “Up To 5 Million Children Could Lose Access To Affordable Insurance Coverage Based On The Happenstance Of Geography.” A brief filed by pediatricians, family physicians, and children's health advocates points out the devastating effect the lack of subsidies could also have on the continued vitality of the Children's Health Insurance Program (CHIP). As the brief explains, the challengers' argument would also disallow the use of the federal exchanges as a backstop for CHIP recipients, but "[n]othing in the program's history or the proceedings surrounding CHIP reauthorization suggest that Congress had such a counterintuitive result in mind, and no sound policy reason supports it":

As the ACA was under debate, Congress gave extensive consideration to how to guarantee continued coverage for low-income children. CHIP was scheduled to expire in 2013, and Congress sought to continue CHIP's successes in the ACA while eliminating the risks to children posed by inadequate or nonexistent federal funding. After debating different proposals, Congress ultimately elected to reauthorize the program through 2019 and continue the program's funding through September 2015. Critically, Congress also enacted a backstop in the event federal CHIP funding proved insufficient or was discontinued. In a subparagraph titled “Assurance of exchange coverage for targeted low-income children unable to be provided health assistance as a result of funding shortfalls,” Congress required states to enroll any eligible children left out of CHIP in an equivalent plan on the “Exchange established by the State.” In the words of one of the principal sponsors of the CHIP extension, “the goal of this legislation ... is four words: 'No child worse off.'”

Petitioners' construction of the phrase “Exchange established by the State” would undercut the CHIP backstop provision, and so too Congress's goal of ensuring continuing coverage for children in need. On Petitioners' view, Congress intended to provide backup coverage only for children with access to State Exchanges -- even though the program Congress was backing up provides coverage to all CHIP-eligible children. Nothing in the program's history or the proceedings surrounding the CHIP reauthorization suggest that Congress had such a counterintuitive result in mind, and no sound policy reason supports it. Petitioners' construction would also have widespread harmful consequences if Congress does not renew CHIP funding later this year -- a very real possibility. Up to 5 million children could lose access to affordable insurance coverage based on the happenstance of geography. The Congress that sought to reaffirm and reinforce CHIP would not have undermined it. [Brief For The American Academy Of Pediatrics, American Academy Of Family Physicians, Children's Health Fund, Children's Hospital Association, First Focus, March Of Dimes, National Physicians Alliance, And Individuals With Pre-Existing Medical Conditions As Amici Curiae In Support Of Respondents, 1/28/15]