Saturday, March 07, 2015


Guest Blogger

Rob Weiner

During the Supreme Court oral argument in King v. Burwell, the challengers persisted in claiming that the language of the Affordable Care Act is absolutely clear, that the principle of constitutional avoidance, as well as Chevron deference and any other relevant interpretive presumptions are unavailing because there is one and only one possible interpretation of the key provision at issue, Section 36B of the Internal Revenue Code.  That is in fact what the challengers must show—that their reading of the statute to deny subsidies in States with Federal Exchanges is incontrovertible. 
            But four Justices (apparently), the IRS, the Solicitor General, 22 States, and leading academic experts in statutory interpretation applying the definitions in the Act have read this same language to mean that tax subsidies are available in all States.  They have drawn this conclusion from the text of the Act itself, not by rewriting the language to promote the statutory purpose, but by giving it what they have concluded is a reasonable—in fact, compelling—interpretation.  Of course, the fact of a dispute regarding the meaning of statutory provisions does not by itself show the issue to be contestable.  But here, there is a critical mass of able, respected readers of the statute who differ with the challengers’ conclusion.  To label the interpretation by these readers as impossible, at odds with the English language, or nonsensical is to deny either their literacy or their candor.  Neither is in doubt. 
            As Justice Kennedy suggested during the argument, the clarity of the statute is also measured against the constitutional requisites of cooperative federalism.  That is another reason the Government should prevail in King.  As the challengers read the law, residents of States that fail to set up insurance Exchanges do not receive tax subsidies to help them afford health insurance, but those States remain subject to the insurance market reforms requiring insurance companies to offer insurance without regard to preexisting conditions and to price insurance based on community characteristics rather than the individual customer’s health situation.  If adopted, the challengers’ interpretation would send insurance markets in those States into a death spiral and impose hardships on millions of people. 
            The Government, along with 22 States, DC, and noted scholars of federalism, highlighted long-recognized principles of federalism requiring Congress to be crystal clear in order for a statute to be interpreted as imposing such intrusive conditions on the States.  As interpreted by the challengers, these parties contended, the ACA would not have conveyed to States with the requisite clarity the draconian consequences of choosing to default to a Federal Exchange. Among the most telling evidence cited to show that the challengers’ interpretation contravenes the federalism canons was the number of States unaware of the disaster they risked by opting for a Federal Exchange.
The canons of construction invoked by the SG, the States, and federalism scholars are not ad hoc creations for purposes of this case.  They are longstanding rules designed to safeguard our constitutional structure.  If the threat the challengers have imagined were in fact embedded in the ACA, the failure to convey it clearly, or at all, would be inconsistent with that structure.  The asserted stealth threat to the States accordingly implicates a parallel precept of statutory construction—the principle of constitutional avoidance discussed during the oral argument.  As the Chief Justice stated in NFIB, this principle requires courts to adopt any “fairly possible” interpretation of a statute in order to avoid constitutional concerns.  And that brings us back full circle to the challengers’ burden, noted at the outset, of showing not merely that theirs is a reasoned interpretation of the ACA, but that it is the only reasoned interpretation.
            Faced with this insuperable burden, some bloggers have digressed to debating whether the Exchange provisions, as the challengers would read them, are coercive as the Medicaid provisions the Court struck down in NFIB. But the issue is textual clarity, not comparative coerciveness.  To be sure, the more coercive a law and the more dire the consequences of opting for the federally-disfavored choice, the more troubling it is if the statute did not clearly convey those consequences.  But it also follows that the more dire the consequences, the less likely it is that there would have been such radio silence about them, if they in fact existed and the statute clearly said so.  The silence here is thus a clarion refutation of the challengers’ claims. 

Rob Weiner, formerly Associate Deputy Attorney General in the United States Department of Justice, is a partner at Arnold & Porter LLP. You can reach him by e-mail at robert.weiner at

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