By Sean Trende
Last week, the most important case that you've never heard of
survived its first legal hurdle. Judge Paul Friedman of the United
States District Court for the District of Columbia ruled that plaintiffs
had standing to advance a broadside attack on the subsidy system at the
heart of the Patient Protection and Affordable Care Act, colloquially
known as Obamacare.
Although the Clinton appointee refused the plaintiffs’ requests to
temporarily enjoin -- that is, block -- the subsidies, he did so because
there would be no harm to delaying an injunction until the conclusion
of the case; he did not directly speak to the merits of the underlying
claim (though he did note that both sides had made, in his view,
credible cases). Friedman promised to rule by Feb. 15, and if he does
enjoin the subsidies to the federal exchanges -- or if any judge in
three other pending cases does so -- the law might well prove
unworkable.
The challenge revolves around three provisions in the Affordable Care
Act. Section 1311 of the law establishes state insurance exchanges. It
provides, in part, that “[e]ach State shall . . . establish an American
Health Benefit Exchange . . . for the State.”
Of course, Congress can’t actually force states to take such a step,
as that would be an unconstitutional commandeering of state governments.
While the administration believed that all states would eventually
create these marketplaces, the ACA nevertheless provides a backstop in
case that didn’t happen: Section 1321 specifies that “the Secretary [of
Health and Human Services] shall . . . establish and operate such
Exchange within the State and the Secretary shall take such actions as
are necessary to implement such other requirements.”
A related provision deals with the calculation and payment of
insurance subsidies. To cushion the blow of the individual mandate to
purchase coverage and pay for associated increased costs, the ACA
includes “premium assistance” for lower-income taxpayers. These
subsidies are available to people whose plans “were enrolled in through
an Exchange established by the State under section 1311 of the Patient
Protection and Affordable Care Act.”
If you’ve been reading carefully, you can see the problem. By its
plain text, the ACA only provides for subsidies for people enrolled in
an exchange that was (a) established by the state and (b) established
under section 1311. (In case you were wondering, the law defines “State”
as “each of the 50 States and the District of Columbia.”) This is the
argument, in a nutshell, of those bringing the lawsuit. If you live in,
say, Oklahoma, which didn’t set up an exchange, the ACA doesn’t appear
to offer a mechanism for you to receive any subsidies.
If you’re an opponent of Obamacare, you’re probably nodding along
vigorously. This case is made all the stronger because we’re talking
about a congressional appropriation, and appropriations have to be
expressly made by Congress under the Constitution.
But if you’re a supporter of Obamacare, you’re probably saying, “Oh,
come on! It’s pretty clear Congress wanted everyone to get the
subsidies.” That, in a nutshell, is the government’s response. The IRS
therefore set forth a rule that extended the subsidies to those enrolled
in a “State Exchange, regional Exchange, subsidiary Exchange, [or] a
Federally-facilitated Exchange.”
The government has defended this rule by arguing that section 1321
instructs the head of HHS to implement “such Exchange” when faced with a
recalcitrant state. The word “such,” in this telling, means that an
exchange established under section 1321 is for all intents and purposes
the same as one established under section 1311.
It’s probably the strongest argument the government can make, but it
runs into three problems. First, it is tough to argue that if, say,
Kentucky suddenly cancelled its (well-functioning) exchange, that
healthcare.gov would be the same as the Kentucky operation; users of the
two systems would almost certainly disagree. Second, the federal
exchange is still authorized under section 1321 of the Act, not section
1311. (With that said, the use of “such” does connote unity, so a court
might determine that the federal exchanges are actually authorized under
section 1311; there’s enough ambiguity here that this might be the most
natural reading.)
But a final problem remains: Even if you accept that the federal
exchange is really just the exchange set up under section 1311, the
statute still specifies that the subsidies are only available to
exchanges established by a state. This is a tough one for the government
to get around, since courts will generally (though not always) balk at
construing a statute in such a way that effectively eliminates words
from that statute. Additionally, the fact that Congress at other points
in the law used broader language, referring to exchanges “established
under this Act,” suggests that Congress knew how to write broader
language if it wanted to.
In a brief responding to the lawsuit, the government also sets forth
examples of provisions of the ACA that would be superfluous or
nonsensical if a court adopted the plaintiffs’ interpretation of the
law. The government here is drawing upon the legal principle that laws
must be construed as a whole, and that the court should avoid
interpreting a section of a statute in a way that renders a different
section non-functioning (of course, this presumes there's some ambiguity
in the section being interpreted).
Without getting too far into the weeds, I’ll just note that
plaintiffs argue that these provisions are neither superfluous nor
nonsensical, and that, in any event, this isn’t an excuse for ignoring
the plain, unambiguous language of the ACA.
Finally, the government argues that nothing in the law’s legislative
history suggests that it intended to set up two different subsidy
schemes, while plaintiffs assert that the government’s own arguments
suggest that this is precisely what was intended. The government points
to the House-passed bill, which provided for a federal exchange with a
waiver provision for states, and which provided subsidies for both sorts
of exchanges. But plaintiffs note that the Senate purposely took a
different approach, with state exchanges operating as the default
mechanism. As an inducement for states to create such an exchange, they
argue, Congress gave them subsidies that aren’t present on a federal
exchange. It’s not necessarily the most compelling argument, but it is
plausible; one influential health care expert had suggested just such a
“carrot/stick” for states in early 2009. Senate Finance Committee
Chairman Max Baucus seemed to express awareness of the dichotomy in a
committee hearing in late 2009, using it as a basis for asserting
jurisdiction over a related issue. Moreover, many -- though not all, and
perhaps even not most -- jurists won’t look to legislative intent if
there is unambiguous language, which takes us back to step one.
If this were any other law, I’d actually be fairly confident that the
court would rule for the plaintiffs and leave it to Congress to fix the
language if it wanted to. At bottom, the government is asking the
courts to take the language “established by the State” and interpret it
to mean “or by the federal government.” That’s significant, especially
in the context of an appropriation.
But this isn’t just any law, as we saw in 2012. In the wake of the National Federation of Independent Business
case upholding the ACA, lower courts may be wary of weakening the law.
At the same time, though, this case is in a different posture than NFIB.
In that one, plaintiffs were asking the court to invalidate as
unconstitutional the most significant piece of social legislation in two
generations on something of a technicality. Chief Justice Roberts took
the long-standing proposition that the court should avoid striking down
legislation as unconstitutional, examined the individual mandate, said
that it looked like a tax, and called it a tax.
Here, plaintiffs may get some more wiggle room because they aren’t
challenging the constitutionality of the law, nor are they asking a
court to be “activist” in its rulemaking. They are asking for a
reasonably straightforward application of canons of statutory
construction. Perhaps more importantly, the court would leave the door
open for Congress to implement a fix, if it wants.
Here’s where the proponents of the suit may be too clever by half.
It’s assumed that, if the courts block the subsidies for people on the
federal exchange, Republicans will dig in, the government will have to
declare hardship exemptions from the mandate for those who can’t afford
insurance without subsidies, and that the framework will collapse.
But a different approach is at least as plausible: This is an
election year, and Democrats will likely mount a full-bore assault on
state legislators, governors, and congressmen in states without
exchanges. The arguments would almost write themselves: Why won’t
you let people in our state have the same benefits that people get in
New York? Why won’t you set up a marketplace where our citizens could
get insurance for one-tenth the price? I’m not sure such a campaign would be as unsuccessful as a lot of Republicans imagine.
In the end, the Supreme Court is not going to be eager to wade into
another ACA case. It will probably have to be forced in. For that to
happen, one of the courts of appeals is probably going to have to rule
in the plaintiffs’ favor. Three of the four cases are actually in
reasonably good circuits for such a ruling to occur: Only three of 10
judges on the 7th Circuit is a Democratic appointee; only five of 10 on
the 10th Circuit is a Democratic appointee; and only four of eight on
the D.C. Circuit is a Democratic appointee (and one of those clerked for
Republican-appointed Justice Sandra Day O’Connor).
If the case does get to the Supreme Court, I’d actually give it
better chances of succeeding than I would have given the original ACA
challenge. The law really did present novel questions, and operated in
the hinterlands of Commerce Clause and cooperative federalism
jurisprudence. I could have seen, to widely varying degrees, any of the
justices (with the exception of Clarence Thomas) voting to uphold it. On
the other hand, this case deals with some well-established canons of
statutory construction; there are almost certainly four liberal votes in
favor of the government’s position, and three conservative votes
opposed to it. Anthony Kennedy was willing to strike down the whole law
wholesale to begin with, and Roberts voted to uphold it only
reluctantly. Faced with creating a national precedent and the language
of this statute, I would not be surprised if this time they rejected the
government’s position -- though I wouldn’t be surprised if they
accepted it, either. If the former happens, the current fights over the
ACA website will likely seem like child’s play compared to what follows.
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