Symposium: King v. Burwell – a simple case
Patrick Wyrick is the Solicitor General of Oklahoma and among counsel to several states as amicus curiae urging review of King. He is also counsel in Oklahoma v. Burwell, the first case raising a challenge to this IRS rule.
If King v. Burwell were a case involving something other than the Affordable Care Act – say, the Indian Gaming Regulatory Act – one might confidently predict that the Court would side with those challenging the IRS rule, because as Justice Kagan explained just last Term in Michigan v. Bay Mills Indian Community, “the Court does not revise legislation . . . just because the text as written creates an apparent anomaly.” “Such anomalies often arise from statute,” and “this Court has no roving license . . . to disregard clear language simply on the view that . . . Congress ‘must have intended’ something broader,” even if the language used by Congress “makes not a whit of sense.”
Same true if the question came to us via the Clean Air Act, because as Justice Scalia explained just last Term in Utility Air Regulatory Group v. EPA, “an agency “has no power to ‘tailor’ legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.” Rather, it may “exercise discretion only in the interstices created by statutory silence or ambiguity,” a limit that applies regardless of policy consequences because agencies cannot “revise clear statutory terms that turn out not to work in practice.” This doubly so when the agency has made a “decisio[n] of vast ‘economic and political significance’” absent a clear statement from Congress.
All this to say that King v. Burwell presents a straightforward question of statutory interpretation, the sort judges decide routinely and readily. The case is a symposium-worthy blockbuster not because of the question presented, but because of the statutory vehicle that delivered us that question.
But because the ACA is involved, it seems all bets are off. We have seen sustained efforts to transform the case into something more complicated and partisan than it ought to be, and I expect those efforts will ramp up considerably now that the Court has agreed to hear the case. Already, in a hedge against a potential loss, a false narrative is being created: that resolution of the case in the challengers’ favor would require the abandonment of all basic principles of textualism. This way, a loss can be blamed on politics, rather than on the true culprit: the IRS’s decision to execute the law it wishes Congress had enacted, rather the law Congress actually enacted.
Resist the temptation to feed into this politicization of the case. Certiorari was granted not because of partisanship, but because the issue presented is of national importance, a prompt resolution is needed, and the lower courts are confused.
Resist the temptation to transform the simple interpretative question presented into a policy debate. When the Court reaches the merits of the case, it will do so not based on partisanship, but based on straightforward application of the textual interpretative tools that the Justices have applied time and again to determine whether the executive branch has gone further than the law allows.
Application of those interpretive rules will likely result in the IRS rule failing under the first step in the Chevron analysis — there simply isn’t any ambiguity to be found in 26 U.S.C. § 36B, and it is Section 36B that controls. That section is where limitations on the availability of the credits and subsidies are found. Indeed, that section is the only section of the ACA where such limitations would be naturally found.
If you have any doubt on this score, ask yourself why is it that no one disputes that the credits and subsidies are only available to help purchase insurance on these newly created exchanges? If the goal of the ACA is to increase everyone’s access to affordable healthcare, why wouldn’t the ACA allow anyone with the requisite financial need get a credit or subsidy to help them buy insurance, regardless of the marketplace? Well, because Section 36B says so. Everyone seems to agree then, that Section 36B establishes limits on the IRS’s ability to grant tax credits and subsidies. It’s just that the IRS has chosen to cherry-pick which limitations it abides by, and which it ignores.
Because Section 36B is the section that governs when it comes to limits on these credits and subsidies, the question then, is what did Congress intend when it drafted Section 36B. The text provides the answer, and an unambiguous answer it is. The phrase “Exchange established by a state under Section 1311” leaves nothing to the IRS’s imagination.
Congress limited availability of the credits and subsidies not just to exchanges, but to a particular type of exchange. There certainly is no valid method of statutory construction that would transform that phrase into “Exchange established by a state or by the federal government.” Doing so in fact violates numerous bedrock canons of statutory construction: It (1) renders statutory language superfluous; (2) treats “differing language” in “two subsections” of the ACA as having “the same meaning in each”; (3) implies tax benefits when such benefits “must be unambiguously proved”; and “must rest . . . on more than a doubt or ambiguity”; and (4) allows federal incursions into regulation traditionally left to the Stateswithout the requisite clear statement of congressional intent to do so.
And even if such a transformation of the text were possible, the result would undermine Congress’s very specific intent with the limitation it placed in Section 36B, which was to induce the states to cooperate with Congress’s desire to have the states establish and operate exchanges by conditioning the availability of credits and subsidies on the states establishing an exchange — an intent confirmed by the ACA’s architect, Jonathan Gruber, when he proclaimed in 2012 that “I guess I’m enough of a believer in democracy to think that when the voters in states see that by not setting up an Exchange, the politicians in their state are costing state residents hundreds of millions and billions of dollars that they’ll eventually throw the guys out. But I don’t know that for sure. And that is really the ultimate threat, is: Will people understand that, gee, if your governor doesn’t set up an Exchange, you’re losing hundreds of millions of dollars of tax credits to be delivered to your citizens?”
The IRS’s rule flatly undermines that intent, and with disastrous results. The incompetence of the federal government was partly to blame for the botched rollout of the near-national exchange (healthcare.gov), but it was also the result of the IRS’s rule having removed the incentive for states to establish state exchanges, as Congress has intended they would. Remember, Congress appropriated billions to HHS to be given to the states to set up exchanges, but not one penny for establishment of a federal exchange. Congress assumed that the incentive it had given the states would be irresistible. The IRS rule destroyed that incentive, and HHS was left scrambling to create healthcare.gov as a result.
In light of all this, it’s understandable that ACA loyalists tell the Court that it is of no real consequence that Congress had this particularized intent when it drafted Section 36B. They instead tell us that Congress’s broader intent with the ACA as a whole — “greater access to affordable healthcare” — overrides any specific intent that Congress might have had in any one section of the ACA. No reasoned principle of statutory interpretation allows this sort of ignorance of plain statutory text under the guise of contextualism — at least not in the absence of absurdity. And as the district court noted in Oklahoma’s case, not only is there a readily apparent rhyme and reason to the plain text, Jonathan Gruber’s statements confirming the incentivizing intent “cu[t] against any argument that the plaintiff’s interpretation is absurd on its face, or that plaintiff’s argument that the statutory language might support a reading of ‘incentivizing’ states to set up exchanges is ‘nonsense, made up out of whole cloth.’” (quoting the dissent of Judge Edwards in Halbig).
And in any event, defenders of the IRS rule have no reasoned explanation for how it is that application of its novel interpretative principle wouldn’t apply to a host of other ACA provisions, in which Congress made specific drafting choices flatly contrary to its big picture goal of expanding access to affordable health care. Why is it that credits and subsidies are limited to those who purchase through these government exchanges? Why is it that those in the U.S. territories were barred from receiving credits and subsidies? Why is it that existing Medicaid funds were to be withheld (entirely) from states who declined to expand their Medicaid programs? And so on, and so forth. The “big purpose override” proposed by defenders of the IRS rule simply has no cabining principle, and that is why it fails as a valid means of statutory interpretation.
In the end, the Court won’t have to break any new interpretative ground in deciding King. When all the noise is stripped away, it’s a simple case. It really is.