The proponents of the Affordable Care Act (ACA) tax subsidies law suits (currently pending in both the D.C. and Fourth Circuits and which I have discussed here, here, here, and here) have seized on the Court’s recent decision in Utility Air Regulatory Group v. EPA—going so far as to file letters of supplemental authority with both courts highlighting the case as additional relevant authority for the subsidies suits. We should hope that the courts understand the ACA—and the specifics of the subsidies challenge—well enough to understand how different these cases are. There is also much in Utility Air, not mentioned by the challengers, that supports the Government’s position in the ACA case, and that should resonate with even the most textualist of judges.
The ACA challengers’ filings and blog posts highlight the part of Utility Air in which the Court refused to let EPA “tailor” the Clean Air Act’s explicit pollution thresholds (raising them higher than the statutory allowance because greenhouse gas emissions are much greater than conventional pollutants). They also highlight the Court’s invocation of the so-called “major questions” rule—the presumption that Congress does not delegate decisions to agencies of vast economic and political significance without making that delegation clear.
The subsidies challenges present completely different facts. The issue in those cases is whether a line in the ACA that provides that the subsidies shall be available to individuals enrolled in insurance “through an Exchange established by the State under section 1311,” clearly also excludes individuals enrolled through federally-operated exchanges. The challengers have made this argument because more than half of the states are using federal exchanges and denying the subsidies on those exchanges would be lethal to the ACA’s operation. Both HHS and the IRS have interpreted the statute as providing the subsidies on the insurance exchanges operated by both the state and the federal governments. Their interpretation is based on the fact that numerous other provisions of the statute, as elaborated in the government’s briefings, would be nonsense and superfluous under the challengers’ reading. One of many possible examples is ACA §36B(f), which provides that:
Each Exchange (or any person carrying out 1 or more responsibilities of an Exchange under section 1311(f)(3) or 1321(c) of the Patient Protection and Affordable Care Act) shall provide the following information to the Secretary and to the taxpayer with respect to any health plan provided through the Exchange:… (C) The aggregate amount of any advance payment of such credit or reductions.
Section 1311 refers to the state exchanges; section 1321 refers to the federal exchanges. Half of this section—which requires reporting to the IRS of the amount of the subsidies offered on both exchanges—would be superfluous the subsidies were not available on the federal exchange. It also would be nonsense.
Enter Utility Air. In the key first part of the opinion, not highlighted by the challengers, the Court, first, emphasizes that Chevron deference applies to an agency’s reasonable construction of a statutory ambiguity; and second, emphatically rejects overly literal, a-contextual readings of statutes that do not consider how statutory terms functions in their broader context within the statute as a whole. From Justice Scalia’s opinion in Utility Air:
To be sure, Congress’s profligate use of “air pollutant” where what is meant is obviously narrower than the Actwide definition is not conducive to clarity. One ordinarily assumes “‘that identical words used in different parts of the same act are intended to have the same meaning.’” Environmental Defense v. Duke Energy Corp., 549 U. S. 561, 574 (2007). In this respect (as in countless others),the Act is far from a chef d’oeuvre of legislative draftsmanship. But we, and EPA, must do our best, bearing in mind the “‘fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.’” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000). As we reiterated the same day we decided Massachusetts, the presumption of consistent usage “‘readily yields’” to context, and a statutory term—even one defined in the statute—“may take on distinct characters from association with distinct statutory objects calling for different implementation strategies.
In case of the subsidies, it is clear beyond cavil that, in the context of the ACA as a whole, the subsidies are available on the federal exchanges. Indeed, Justice Scalia himself—in the Joint Dissent authored by Justices Scalia, Thomas, Kennedy and Alito, in NFIB (the major 2012 constitutional challenge to health reform ) described the ACA’s state-federal health exchange division-of-labor without any doubt as to the provision of the subsidies on federal exchanges. In fact, the Joint Dissent goes further, arguing that the exchanges will collapse without the subsidies and the Act will not function as Congress intended:
Congress thought that some States might decline federal funding for the operation ofa “health benefit exchange,” Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State. See 42 U. S. C. §18041(c)(1).
The Act’s design is to allocate billions of federal dollars to subsidize individuals’ purchases on the exchanges. .. By 2019, 20 million of the 24 million people who will obtain insurance through an exchange are expected to receive an average federal subsidy of $6,460 per person. See CBO, Analysis of the Major Health Care Legislation Enacted in March 2010, pp. 18–19 (Mar. 30, 2011).
In the absence of federal subsidies to purchasers, insurance companies will have little incentive to sell insurance on the exchanges. Under the ACA’s scheme, few, if any, individuals would want to buy individual insurance policies outside of an exchange, because federal subsidies would be unavailable outside of an exchange. … That system of incentives collapses if the federal subsidies are invalidated. Without the federal subsidies, individuals would lose the main incentive to purchase insurance inside the exchanges, and some insurers may be unwilling to offer insurance inside of exchanges. With fewer buyers and even fewer sellers, the exchanges would not operate as Congress intended and may not operate at all.
The Joint Dissent’s understanding of how the statute operates came from a holistic reading of the statute—the statute as a whole, in context, as any good textualist should read it, and as Justice Scalia himself has been arguing for years how good textualists do read statutes. For the subsidies-case challengers now to argue that it was clear Congress intended something different flies in the face of all the evidence we have from Congress and the states (as I elaborated here) and, from the Court itself in NFIB. The D.C. District Court found the ACA so clear on the allowance of the federal exchange subsidies that it did not even go to Chevron deference. But at a minimum, the statutory context as a whole creates an ambiguity that has been reasonably resolved by both federal agencies—HHS and the IRS—explicitly delegated the authority to interpret these provisions. Contrary to the challengers’ new arguments based on Utility Air, the IRS and HHS are not doing anything like “tailoring” the ACA’s clear text to new circumstances; rather, they are enforcing the ACA as written.
Finally, with respect to the major questions rule—the presumption that Congress does not silently give agencies the power to decide questions of major economic or political significance—that rule cuts exactly in the opposite direction in the subsidies case as in the EPA case. In the subsidies case, had HHS or the IRS come out with the opposite interpretation—allowing subsidies on only the state exchanges—the result would have been, as Justice Scalia himself agreed in the NFIB Joint Dissent—the complete collapse of the ACA’s insurance regime. Such an agency interpretation would have denied the subsidies—and so denied health insurance—to the more than 12.5 million Americans expected to be eligible for subsidies in federal-exchange states. If that interpretation—the opposite interpretation as the one actually adopted by HHS and IRS—wouldn’t constitute a decision of enormous political and economic significance that Congress couldn’t possibly have intended an agency to make—what would?
Many thanks to Glenn Cohen and everyone at Bill of Health for inviting me to contribute to this terrific blog. I look forward to future posts.