Fifty Shades of Wrong

Just in time for oral argument, Tim Jost and James Engstrand have a new article out on King v. Burwell. In it, they march through the statute identifying anomalies—at least fifty of them—that accepting the plaintiffs’ interpretation would create. The parties cover many of these incongruities in their briefs, but by no means all of them. As the authors explain:

Some of these anomalies are arguably minor if considered singly. Others, however, are quite difficult to explain away. Indeed, some are more properly characterized as “absurdities.” … Judge Thomas B. Griffith, for example, in his majority panel decision in Halbig v. Burwell (since vacated), was forced by his grim determination to find that only state-operated exchanges could grant premium tax credits, to conclude that [federally facilitated exchanges] could enroll individuals who were not “qualified,” leaving the term “qualified individuals” meaningless.

[Plaintiffs] also make this argument in their brief to the Supreme Court, although they concede that the Department of Health and Human Services (HHS), pursuant to its “broad power [under 42 U.S.C. § 18041(c)] to ‘take such actions as are necessary to implement’ the ‘other requirements’” regarding the operation of Exchanges, could redefine “qualified individuals.” This, of course, begs the question of why HHS could not use the same “broad powers” to apply to [federally facilitated exchanges] the requirement that Exchanges make premium tax credits available.

In any event, cumulatively, the incongruities that [plaintiffs’] reading of 36B creates make it difficult to see how the Supreme Court could rule for [plaintiffs] without ignoring 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,” which the justices have repeatedly acknowledged in their decisions.

In my view, Jost and Engstrand are on exactly the right track: they’re building a statutory case, premised on the text of the ACA as a whole, in favor of the government’s interpretation. (I’ve made the same effort in some posts of my own.) As it stands, the meticulousness of their examination is unmatched. Let’s hope the Supreme Court takes notice.


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