Recent Supreme Court Term: King v. Burwell
by Professor Wilton Hyman
“The issue in this
case is whether the Act’s [the Affordable Care Act] tax credits are available
in States that have a Federal Exchange rather than a State Exchange.”King v. Burwell, 576 U.S. __ (2015) (p.
5). The Affordable Care Act (ACA) requires each state to create its own health
insurance Exchange, however, if a state refuses to do so, then the Secretary of
Health and Human Services (HHS) is authorized to “establish and operate such
Exchange within the State.” Sec. 18041(c)(1).” (p. 5). Only sixteen States and
the District of Columbia created their own Exchanges, while thirty-four States
utilize the federal Exchange administered by the Department of Health and Human
Services. (p. 6).
The tax credits, which are authorized by IRC sec. 36B, are
allowed to “applicable taxpayers” who obtain health insurance through “an
Exchange established by the State under section 1311 of the Patient Protection
and Affordable Care act….” (p. 5). The IRS addressed the availability of tax
credits to individuals acquiring health insurance through an HHS Exchange by adopting
the definition of “Exchange” as used in an HHS regulation, 45 CFR sec. 155.20,
which provided that taxpayers are eligible for a tax credit if they are
enrolled in an Exchange which serves the individual market, “regardless of
whether the Exchange is established and operated by a State… or by HHS….” (p.
6).
In prior proceedings, the U.S. District Court for the
Eastern District of Virginia granted the Defendants’ Motion to Dismiss, 997
F.Supp.2d 415 (2014), and the District Court judgment was affirmed by the U.S.
Court of Appeals for the 4th Circuit, 759 F.3d 358 (2014).
Justice Roberts, who was joined by Justices Kennedy,
Ginsberg, Breyer, Sotomayor, and Kagan, wrote the majority opinion, and held
that tax credits for health insurance under IRC sec. 36B applied to individuals
acquiring coverage on federal health insurance exchanges under the Affordable
Care Act (ACA), even though sec. 36B states that the credits apply to insurance
plans that are enrolled in through “an Exchange established by the State under
[42 U.S.C. sec. 18031].” Justice Roberts’ reasoning was based on the ambiguity
reflected in sec. 36B when it was interpreted in connection with other
provisions of the ACA, and the manner in which those ambiguities were either consistent
or inconsistent with Congress’ intent that the ACA expand health care coverage,
and lower the cost of health insurance as a means of facilitating that
expansion of coverage. The Congressional intent to expand health insurance
coverage through the ACA would have been undermined if the sec. 36B tax credits
were not applicable to individuals enrolled in health insurance plans through
the federal exchanges.
Justice Roberts discussed the history of health reform in
the United States and how states which instituted guaranteed issue, which
required insurers to cover persons regardless of health status, and community
rating, which restricted insurers from taking health status into account in
setting premiums, ultimately led to “adverse selection,” which occurred when a
person would only seek insurance once they became sick or in need of health
care coverage. Because insurers were required to cover persons regardless of health
status and could not take health status into account in setting premiums for
specific insureds, they were forced to raise rates for all insureds in order to
account for the higher health costs, increasing the cost of coverage and
reducing the numbers of individuals who could afford coverage. Justice Roberts
wrote that “This led to an economic “death spiral.” As premiums rose higher and
higher, and the number of people buying insurance sank lower and lower,
insurers began to leave the market entirely.” (p. 2).
Congress, relying on the Massachusetts health reform effort
in 2006, included in the ACA a guaranteed issue and community rating component,
but also included an individual mandate requiring most individuals to maintain
health insurance coverage (either employer-provided, private coverage, or
government-subsidized coverage), or pay a penalty. For individuals whose
household income is between 100% and 400% of the federal poverty level income
amount, they are eligible for a tax credit pursuant to IRC sec. 36B. The tax
credit lowers the cost of health insurance for working class and middle class
taxpayers, while the mandate brings into the health insurance pool more young
and healthy persons (who would otherwise not obtain coverage) whose premiums
subsidize the cost of coverage for sick and older persons under the ACA. (
p.4).
Justice Roberts, in discussing Congress’ awareness of the
necessity of the individual mandate and the tax credit to the reform effort,
writes: “These three reforms are closely intertwined. As noted, Congress found
that the guaranteed issue and community rating requirements would not work
without the coverage requirement. Sec. 18091(2)(I). And the coverage
requirement would not work without the tax credits. “The reason is that,
without the tax credits, the cost of buying insurance would exceed eight
percent of income for a large number of individuals, which would exempt them
from the coverage requirement. Given the relationship between these three
reforms, the Act provided that they should take effect on the same day—January
1, 2014....” (p. 5).
Justice Roberts determined that due to the “economic and
political significance” of the tax credits and their central role in the
statutory scheme Congress created under the ACA, “It is especially unlikely
that Congress would have delegated” to the IRS the authority to resolve any
ambiguities with the tax credit under its regulatory authority without
expressly doing so. He concludes that it is the Court’s, and not the IRS’s duty
to determine the correct interpretation of sec. 36B. (p 8).
Justice Roberts’ analysis first finds that the authority
granted to the Secretary of HHS to “establish and operate such Exchange within
the State,” pursuant to sec. 18041(c)(1) of the ACA, shows that the HHS
exchanges and the state Exchanges under sec. 18031 “are equivalent” by virtue
of HHS establishing “such Exchange” under 18041, or, that HHS is to establish
“the same Exchange that the State was directed to establish under Section
18031.” (p. 9-10).
Justice Roberts then analyzes sec. 36B in context with other
provisions of the ACA (sec. 18032 defining “qualified individual” and sec.
300gg-91(d)(21) defining “Exchange”) and determines that a federal Exchange may
be considered as one “established by the State” in order for the federal
Exchange to function consistently with those other provisions within the
statutory scheme of the ACA, resulting in ambiguity in the interpretation of
sec. 36B within the context of the ACA’s statutory scheme, as compared to a
literal interpretation of “established by the State” under sec. 36B. (p.
10-13).
Applying the principle of statutory interpretation that “the
words of a statute must be read in their context with a view to their place in
the overall statutory scheme,” Justice Roberts concludes that a strict
interpretation of sec. 36B must be rejected because “it would destabilize the
individual insurance market in any State with a Federal Exchange, and likely
create the very ‘death spirals’ that Congress designed the Act to avoid.” (p. 9,
15).
Justice Roberts holds that the sec. 36B tax credits are
allowed for health insurance purchased on “any Exchange created under the Act.”
Justice Scalia wrote the dissenting opinion and was joined
by Justices Thomas and Alito. Justice Scalia applies a literal interpretation
of sec. 36B and concludes that the tax credits only apply to Exchanges
established by the States, therefore, no tax credits are allowed for health
insurance purchased on a federal Exchange. (p. 2).
In contrast to Justice Roberts’ broad-based ambiguity
analysis, which relies on his interpretation of sec. 36B in the context of the
purpose and design of the ACA and his conclusion that a literal interpretation
of the statute would conflict with the ACA’s design and purpose, Justice Scalia
focuses solely on the language of the statute itself in determining whether
there is any ambiguity, and finding no ambiguity in the statutory language, concludes
that there is no reason to consider the ACA’s purpose and design for the
purpose of interpreting sec. 36B. (p. 13).
Justice Scalia suggests that the design of the ACA was
intended to incentivize states to create and operate their own exchanges and
that limiting the 36B tax credits to health insurance plans purchased on a
state exchange was one means of encouraging states to create their own
exchanges. (p. 15-16). In light of that suggestion, he finds that interpreting
sec. 36B to allow tax credits for health insurance purchased on a federal
Exchange eliminates any need on the part of the state to create its own
Exchange since the tax credit will be available on a federal Exchange. (p. 16).
Justice Scalia also states that the majority, rather than
interpreting sec. 36B is actually rewriting the statute, which is a duty belonging
to Congress.
Discussion
This case, at its most basic level, is a statutory
interpretation dispute. The lower courts which decided this case came to the
same judgment as the Supreme Court, but each with slightly different reasoning.
Justice Roberts’ opinion applies a broad and policy-based
analysis of both the legislative intent and design of the ACA in order to
determine not only how the health insurance Exchanges were intended to operate,
but also as a means of determining which interpretation of sec. 36B was most
consistent with Congress’ purpose and design for the ACA.
Justice Scalia applied a more limited analysis, focusing
solely on the statutory language of sec. 36B, and finding no ambiguity in the
statute itself, determined that there was no need to analyze the purpose and the
design of the ACA in interpreting the statutory language.
Justice Scalia’s criticism that the Court is rewriting the
statute, not interpreting it, is very interesting. I think that your conclusion
as to whether the Court is interpreting sec. 36B, or rewriting it, depends upon
whether you agree with Justice Roberts’ or Justice Scalia’s approach in
determining and analyzing statutory ambiguity. In light of the complex design
and interlocking provisions of the ACA, and the need to analyze sec. 36B in the
context of those aspects of the law in order to fully comprehend how it fit
within the statutory scheme, Justice Roberts, as well as the lower courts,
decided the case correctly.
