Wednesday, August 27, 2014

The methodological absurdity of isolated textualism: Halbig, King, and how not to read

Guest Blogger

Jonah B. Gelbach

Because many states refuse to operate their own health insurance exchanges, millions of people must buy coverage through the federal exchange known as The IRS pays subsidies to insurers on behalf of qualifying enrollees who buy their plans through These subsidies play a critical role in the operation of the Affordable Care Act.

In the D.C. Circuit’s Halbig and 4th Circuit’s King cases, plaintiffs and their supporting amici contend that the text of the ACA forecloses the federal government from paying such subsidies. Section 1401 of the ACA, which authorizes federal subsidies and sets out the formula for determining who is eligible and for how much, states that the subsidy shall be provided for any “coverage month.” A coverage month is defined as any month in which an individual taxpayer, her spouse, or her dependents are covered by a qualified plan in which the taxpayer enrolled through “an Exchange established by the State” under another section of the ACA. 

The Halbig and King cases turn on whether the federal exchange can qualify as “an Exchange established by the State.” Absolutely not, says Michael F. Cannon, who has participated in these cases as an amicus. Cannon has repeatedly insisted that the phrase “an Exchange established by the State” cannot possibly be read to encompass 

(1)    Everyone knows that the federal government is not a State.
(2)    A website established by the federal government therefore cannot possibly be considered “an Exchange established by” a “State.”
(3)    Therefore, it is impossible for a “coverage month” to include months in which health coverage was enrolled in through, so there is no lawful basis for providing subsidies to those who buy coverage on the federal exchange.

Cannon has categorically rejected any other interpretation, declaring that the IRS’s interpretation of the ACA requires “the absurd claim that the federal government can establish an Exchange that is established by a state.”* 

But Cannon’s claim is the absurd one. It rests on an approach to reading the tax code—one little bit at a time, with no consideration of the rest of the law—that is not just indefensible, but which, outside the particulars of the Halbig and King litigation, no one does defend. 

To see why, let’s ask what would happen if we applied Cannon’s isolated textualism to the Internal Revenue Code generally,** by considering how much tax would have been owed by a married couple filing jointly and having $17,000 in taxable income in 2013.

The opening sentence of the U.S. Internal Revenue Code, 26 U.S.C. 1(a), imposes a tax of 15% on the first $36,900 in “taxable income” of married couples who file joint tax returns.  The text in question is a bit more long-winded than this description, but otherwise it couldn’t be plainer. Using Cannon’s approach to reading text—one little bit at a time, with no consideration of the rest of the law—the couple owes 15% of their taxable income, and that’s it. 

But that’s not the tax the IRS would have sought to collect. To understand why, all you have to do is what any law student taking Federal Income Taxation should learn on day one: keep reading. Subsequent parts of 26 U.S.C. 1 operate jointly to create an additional tax bracket that applies a tax of 10% of the first $17,850 of a married-filing-jointly couple’s taxable income (see this IRS page). Consequently, no one suggests the IRS is behaving unlawfully when it collects less than 15% in taxes from such couples.*** Yet Cannon’s argument, applied here, would suggest that this practice by the IRS requires “the absurd claim that a tax rate of 10% is a tax rate of 15%.” 

Other such examples abound. Capital gains are taxable income, yet the tax rate applied to them is often different from that applied to other sources of taxable income (see Section 1(h)). The child tax credit reduces the tax owed (see 26 U.S.C. 24); ditto the earned income tax credit (see 26 U.S.C. 32).
Further, certain parts of the tax code treat familiar terms in unusual ways. One can imagine Cannon decrying “the absurd claim that property does not include corporate stock,” or “the absurd claim that brothers and sisters are not related persons.” Yet Section 317 excludes corporate stock from the definition of “property,” and Section 318 excludes siblings from those covered by the term “related persons” in other sections of the code. Any absurdity in such examples would be the consequence of reading the tax code as Cannon wants to in Halbig and King—one little bit at a time, with no consideration of the rest of the law.

If you doubt the relevance of these examples, consider one more time the implications of reading Section 1(a) of the tax code the way Cannon advocates reading Section 1401 of the ACA. Because Section 1(a) says nothing about any tax credits, if we read it the way that Cannon wants to read the ACA—one little bit at a time, with no consideration of the rest of the law—then Section 1(a) is clearly inconsistent with the payment of any ACA subsidies, regardless of the “Exchange” where plan purchases are made. These subsidies are described in Section 1401 as tax credits, so their payment necessarily leads to a tax rate different from that specified in Section 1(a)’s tax rate schedule. Ergo, Cannon’s approach to reading the text— one little bit at a time, with no consideration of the rest of the law—would require the IRS not to pay any subsidies at all.

So why don’t Cannon and the plaintiffs in the Halbig and King cases make this argument? They are avowed opponents of the ACA generally—not just as to its subsidies for those who buy coverage on the federal exchange. It’s hard to imagine they would decline a chance to argue that all ACA subsidies are unlawful. 

But it isn’t hard to guess why Cannon and company didn’t argue that all ACA subsidies are unlawful. Indeed, I doubt they even thought of it, because it would be absurd to read 26 U.S.C. 1 one little bit at a time, with no consideration of the rest of the tax code. It’s just as absurd to pick out a single phrase in Section 1401 and read it without reference to the rest of the ACA.

Jonah B. Gelbach is Associate Professor of Law at the University of Pennsylvania School of Law. You can reach him by e-mail at jgelbach at
*Many problems with this and other aspect of the Halbig and King plaintiffs’ arguments have been ably answered, and I will not rehash them here (see, e.g., Abbe Gluck’s recent Politico piece, or her various posts at Balkinization, e.g., this one).
** This is a variation on a theme Cannon recently whistled, when he asked, “What If We Applied the IRS’s Reasoning in Halbig & King to the Patriot Act or RFRA, Instead of the ACA?”
*** Actually, the exact tax due might be slightly different from 10%, thanks to 26 U.S.C. 3, which provides discretion for the Secretary to create those tax tables we’re all familiar with. A married couple filing jointly with $17,000 in taxable income in 2013 would have owed $1,703; see the IRS’s 2013 tax table.