king v. burwell - government reply brief

8/9/2019 King v. Burwell - Government Reply Brief

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No. 14-114

In the Supreme Court of the United States

DAVID KING,ET AL.,PETITIONERSv.

SYLVIA BURWELL,SECRETARY OF HEALTH ANDHUMAN SERVICES,ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENTS

CHRISTOPHER J.MEADEGeneral CounselDepartment of the Treasury

Washington, D.C. 20220

M.PATRICIA SMITHSolicitor of LaborDepartment of LaborWashington, D.C. 20210

WILLIAM B.SCHULTZGeneral CounselDepartment of Health and

Human ServicesWashington, D.C. 20201

DONALD B.VERRILLI,JR.Solicitor General

Counsel of Record

JOYCE R.BRANDAActing Assistant Attorney

General

IAN HEATH GERSHENGORNEDWIN S.KNEEDLER

Deputy Solicitors GeneralBETH S.BRINKMANN

Deputy Assistant Attorney

GeneralBRIAN H.FLETCHERAssistant to the Solicitor

GeneralMARK B.STERNALISA B.KLEIN

Attorneys

Department of JusticeWashington, D.C. [email protected](202) 514-2217


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TABLEOFCONTENTS

Page

Opinions below ................................................................................ 1Jurisdiction ...................................................................................... 1

Statutory and regulatory provisions involved ........................... 1Statement ......................................................................................... 2

A. Statutory background ............................................... 31. Before the Affordable Care Act, the

individual market for insurance wascharacterized by high prices and wide-spread discrimination.........................................3

2. States that adopted stand-alone non-discrimination rules suffered deathspirals in their individual insurancemarkets ................................................................ 4

3. The ACAs reforms are predicated ontax credits subsidizing the purchase ofinsurance .............................................................. 6

4. The ACAs tax credits are furnishedthrough state-specific Exchangesoperated by the States and by HHS ................ 9

B. The operation of the ACAs Exchanges ............... 11C. Proceedings below ................................................... 11

Summary of argument ................................................................. 12Argument ....................................................................................... 17

I. The Affordable Care Act makes federal taxcredits available on Exchanges in every State ............ 19

A. The text of 26 U.S.C. 36B and the otherdirectly applicable provisions makesclear that tax credits are available onExchanges in every State ....................................... 191. Tax credits are available on all Exchanges

because the phrase Exchange establishedby the State under Section 18031 is aterm of art that includes a federally-facilitated Exchange ........................................ 20

(III)


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IV

Table of ContentsContinued: Page

2. Section 36B(f) makes clear that taxcredits are available to eligible taxpayers

through the Exchanges in every State ......... 253. Other provisions of the Act using equi-valent language confirm that an Ex-change established for a State by HHSqualifies as an Exchange establishedby the State under Section 18031 ................. 27

4. Petitioners reading of the phrasean Exchange established by the Stateunder Section 18031 collapses underthe cumulative weight of the myriadinconsistencies it creates ................................. 31

5. The phrase established by the State

under Section 18031 serves to identifythe Exchange in a particular State, notto exclude a federally-facilitatedExchange ...........................................................33

B. The ACAs structure and design confirmthat tax credits are available through theExchanges in every State ...................................... 351. The availability of tax credits on

Exchanges in every State is essentialto the Acts insurance-market reforms ......... 36

2. The availability of tax credits on

Exchanges in every State is essentialto the Acts model of cooperativefederalism .......................................................... 38

C. Petitioners alternative account of theActs design is baseless ........................................... 411. Congress understood that some States

would not establish Exchanges forthemselves ......................................................... 41

2. The Acts tax credits are unlike a condi-tional spending program ................................. 43


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V

Table of ContentsContinued: Page

3. The legislative record demonstratesthat Congress understood that tax credits

would be available through federally- facilitated Exchanges ....................................... 45D. Petitioners cannot escape the absurd

consequences of their reading ............................... 51II. At a minimum, Treasurys interpretation is a

permissible one warranting deference ......................... 55Conclusion ...................................................................................... 60Appendix Statutory and regulatory provisions ................. 1a

TABLEOFAUTHORITIES

Cases:

Abramskiv. United States, 134 S. Ct. 2259 (2014) ............. 35Battertonv.Francis, 432 U.S. 416 (1977) ............................ 41

Beechamv. United States, 511 U.S. 368 (1994) ................... 20

Bondv.United States, 134 S. Ct. 2077 (2014) ..................... 40

Burnetv.Harmel, 287 U.S. 103 (1932)................................. 58

Chevron U.S.A. Inc. v.NRDC, Inc., 467 U.S. 837(1984) ...................................................................................... 12

City of Arlingtonv.FCC, 133 S. Ct. 1863 (2013) ................ 57

Coeur Alaska, Inc. v.Southeast Alaska Conserva-tion Council, 557 U.S. 261 (2009) ....................................... 58

Douglasv.Independent Living Ctr. of S. Cal., Inc.,132 S. Ct. 1204 (2012) ........................................................... 29

Estellev.Gamble, 429 U.S. 97 (1976) ................................... 53

FDAv.Brown & Williamson Tobacco Corp.,529 U.S. 120 (2000) ............................................. 21, 33, 56, 57

Gregoryv.Ashcroft, 501 U.S. 452 (1991) .............................. 40

Lyethv.Hoey, 305 U.S. 188 (1938) ....................................... 58

Mayo Found. for Med. Educ. & Researchv. UnitedStates, 131 S. Ct. 704 (2011) .................................... 55, 57, 58


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VI

CasesContinued: Page

Mohamadv.Palestinian Auth., 132 S. Ct. 1702(2012) ...................................................................................... 21

National Assn of Home Buildersv.Defendersof Wildlife, 551 U.S. 644 (2007) ........................................... 58

National Fedn of Indep. Bus.v.Sebelius, 132S. Ct. 2566 (2012) .........................................................passim

New York Tel. Co. v.New York State Dept of Labor,440 U.S. 519 (1979) ............................................................... 40

Pennhurst State Sch. & Hospitalv.Halderman,451 U.S. 1 (1981) ................................................................... 40

Powerex Corp.v.Reliant Energy Servs., Inc.,551 U.S. 224 (2007) ............................................................... 27

Printzv. United States, 521 U.S. 898 (1997) ....................... 22

Scialabbav. Cuellar de Osorio, 134 S. Ct. 2191 (2014) ...... 57

Taylorv. United States, 495 U.S. 575 (1990) ....................... 49

United Statesv.Aguilar, 515 U.S. 593 (1995) ..................... 23

United Statesv.Irvine, 511 U.S. 224 (1994) ........................ 58

United Sav. Assn of Tex.v. Timbers of InwoodForest Assocs., Ltd., 484 U.S. 365 (1988)........................... 27

Utility Air Regulatory Grp.v.EPA, 134 S. Ct. 2427(2014) .......................................................................... 20, 38, 57

Western Union Tel. Co.v.Lenroot, 323 U.S. 490(1945) ..........................................................................................

Whitmanv.American Trucking Assns, 531 U.S.457 (2001) ............................................................................... 39

Wisconsin Dept of Health & Family Servs. v.Blumer, 534 U.S. 473 (2002) ................................................ 40

Statutes and regulations:

Health Care and Education Reconciliation Act of2010, Pub. L. No. 111-152, 124 Stat. 1029............................ 2

1001, 124 Stat. 1031-1032 .............................................. 49


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VII

Statutes and regulationsContinued: Page

1004, 124 Stat. 1034 ........................................................ 49

1005, 124 Stat. 1029 ........................................................ 42

Internal Revenue Code:26 U.S.C. 35 ................................................................ 44, 69a

26 U.S.C. 35(a)-(c) ..................................................... 44, 69a

26 U.S.C. 35(e)(1)(A) ................................................. 44, 73a

26 U.S.C. 35(e)(1)(I) .................................................. 44, 74a

26 U.S.C. 35(e)(1)(J) .................................................. 44, 75a

26 U.S.C. 35(e)(2) ...................................................... 44, 76a

26 U.S.C. 36B ....................................................passim, 33a

26 U.S.C. 36B(a) ...................................... 10, 13, 19, 26, 33a

26 U.S.C. 36B(b) ........................................................ 10, 33a

26 U.S.C. 36B(b)(2)(A) ................10, 19, 33, 34, 46, 47, 34a26 U.S.C. 36B(c)(1)(A) ........................................ 10, 19, 40a

26 U.S.C. 36B(c)(2)(A) .............................................. 33, 41a

26 U.S.C. 36B(c)(2)(A)(i) .............................. 10, 19, 47, 41a

26 U.S.C. 36B(d)(3) ................................................... 34, 45a

26 U.S.C. 36B(e)(3) ................................................... 34, 47a

26 U.S.C. 36B(f)...........................14, 25, 26, 31, 40, 56, 48a

26 U.S.C. 36B(f)(3) .................................. 25, 26, 27, 34, 49a

26 U.S.C. 36B(f)(3)(C) .............................................. 26, 50a

26 U.S.C. 36B(f)(3)(E) .............................................. 26, 50a

26 U.S.C. 36B(f)(3)(F) .............................................. 26, 50a26 U.S.C. 36B(g) ........................................................ 55, 50a

26 U.S.C. 36B(g)(1) ................................................... 59, 50a

26 U.S.C. 4980H .......................................................... 54, 58

26 U.S.C. 4980H(a) ............................................................ 54

26 U.S.C. 4980H(b)(1)(B) ................................................. 54

26 U.S.C. 5000A ............................................................. 7, 36

26 U.S.C. 5000A(e)(1) ................................................. 36, 58


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VIII


26 U.S.C. 5000A(e)(1)(B)(ii) ............................................... 8

26 U.S.C. 6055 .................................................................... 27

26 U.S.C. 7805(a) ............................................................... 55Patient Protection and Affordable Care Act,

Pub. L. No. 111-148, 124 Stat. 119:

Tit. I, 124 Stat. 130 ........................................................ 2, 27

Subtit. C, 124 Stat. 154:

1255, 124 Stat. 162 ................................................ 8

Subtit. D, Pt. 3 ............................................................. 38

Subtit. E, 124 Stat. 213 ............................................... 12

1401(e), 124 Stat. 220 ........................................... 8

Subtit. F, 124 Stat. 242:

1501(d), 124 Stat. 249 ........................................... 8Subtit. G, 124 Stat. 258:

1563(a), 124 Stat. 270-271 .................................. 48

Tit. II ................................................................................... 27

Tit. VI, 6005, 124 Stat. 698 ............................................ 34

Tit. X, 10103(f)(1), 124 Stat. 895 ..................................... 8

Public Health Service Act, 42 U.S.C. 201 et seq............ 38, 49

Social Security Act, 42 U.S.C. 301 et seq.............................. 46

29 U.S.C. 218b(a)(2)........................................................... 34, 40

42 U.S.C. 300gg to 300gg-4 ................................................ 6, 36

42 U.S.C. 300gg-22 .................................................................. 3842 U.S.C. 300gg-91(d)(21) ......................................... 14, 23, 57a

42 U.S.C. 1320b-23(a)(2) ......................................................... 34

42 U.S.C. 1396a(gg)(1) ........................................ 29, 32, 34, 57a

42 U.S.C. 1396a(gg)(3) .................................................... 29, 58a

42 U.S.C. 1396w-3(b) ................................................. 32, 34, 64a

42 U.S.C. 1396w-3(b)(1) .................................................. 30, 64a

42 U.S.C. 1396w-3(b)(2) .................................................. 30, 67a


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X


42 U.S.C. 18033(a)(6)(A) ......................................................... 34

42 U.S.C. 18041 .......................................................passim, 30a

42 U.S.C. 18041(b) ....................................................... 9, 38, 31a42 U.S.C. 18041(c) ............................................................ 26, 31a

42 U.S.C. 18041(c)(1) ..............................................passim, 31a

42 U.S.C. 18043(a) ................................................................... 24

42 U.S.C. 18043(a)(1) ............................................................... 23

42 U.S.C. 18051(d)(3)(A)(i) ......................................... 34, 35, 40

42 U.S.C. 18051(e)(1) ............................................................... 52

42 U.S.C. 18051(e)(2) ............................................................... 52

42 U.S.C. 18052(a) ................................................................... 55

42 U.S.C. 18052(a)(3) ................................................... 34, 35, 40

42 U.S.C. 18053(a) ................................................................... 5342 U.S.C. 18071 .......................................................................... 9

42 U.S.C. 18071(b)(1)............................................................... 34

42 U.S.C. 18071(c)(2) ................................................................. 8

42 U.S.C. 18071(d)(1) .............................................................. 34

42 U.S.C. 18071(e)(3) ............................................................... 34

42 U.S.C. 18081 .................................................................... 9, 32

42 U.S.C. 18081(a) ................................................................... 25

42 U.S.C. 18081(b)(3)............................................................... 25

42 U.S.C. 18081(c)-(e) .............................................................. 25

42 U.S.C. 18082 ........................................................ 9, 25, 32, 3442 U.S.C. 18082(a)(1) ............................................................... 40

42 U.S.C. 18083(a) ........................................................... 30, 51a

42 U.S.C. 18091(2)(D) ................................................................ 7

42 U.S.C. 18091(2)(I) ................................................. 6, 7, 18, 36

42 U.S.C. 18111 ........................................................................ 23


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XI

RegulationsContinued: Page

26 C.F.R.:

Section 1.36B-1(k) ..................................................... 10, 78a

Section 1.36B-2(a) ..................................................... 10, 78a45 C.F.R.:

Section 155.20 ........................................................ 9, 28, 79a

Section 155.100 .................................................................. 22

Section 155.105 .................................................................. 22

Section 155.305(a)(3) ......................................................... 28

Miscellaneous:

Addressing Insurance Market Reform in National

Health Reform: Hearing Before the Senate Comm.

on Health, Education, Labor, & Pensions, 111thCong., 1st Sess. (2009) ....................................................... 6, 7

Jonathan H. Adler & Michael F. Cannon,AnotherObamaCare Glitch, Wall St. J., Nov. 16, 2011 .................. 50

Stephanie Armour,Lawyers Eye Helped SparkHealth-Care Suit, Wall St. J., July 25, 2014 ..................... 49

Blacks Law Dictionary(9th ed. 2009) ................................. 22

Linda J. Blumberg et al., The Implications of a Su-preme Court Finding for the Plaintiff in King vs.Burwell (Jan. 2015), http://www.urban.org/UploadedPDF/2000062-The-Implications-King-

vs-Burwell.pdf ................................................................. 36, 37Carrie Budoff Brown,Nelson: National Exchange aDealbreaker, Politico, Jan. 25, 2010,http://www.politico.com/livepulse/0110/Nelson_National_exchange_a_dealbreaker.html# ....................... 51


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XII

MiscellaneousContinued: Page

Ctrs. for Disease Control,Health Insurance Cover-age: Early Release of Quarterly Estimates from

the National Health Interview Survey (Dec. 16,2014), http://www.cdc.gov/nchs/data/nhis/earlyrelease/insur201412.pdf ................................................ 2

Chairmans Mark: Americas Healthy Future Act of

2009(Sept. 22, 2009), http://www.finance.senate.gov/newsroom/chairman/download/?id=76f524bb-a091-46c2-8a3c-f4fccbf7d615 ..................... 46

Congressional Budget Office:

An Analysis of Health Insurance Premiums

Under the ACA(Nov. 30, 2009), http://www.cbo.gov/sites/default/files/11-30-

premiums.pdf ........................................................... 8, 48Key Issues in Analyzing Major Health Insur-

ance Proposals(Dec. 2008), http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/99xx/doc9924/12-18-keyissues.pdf ............. 3, 4

155 Cong. Rec.:

p. S12,358 (daily ed. Dec. 4, 2009) ................................... 47

pp. S12,543-S12,544 (daily ed. Dec. 6, 2009) .................. 42

p. S13,205 (daily ed. Dec. 15, 2009) ................................. 47

p. S13,375 (daily ed. Dec. 17, 2009) ................................. 47

p. S13,490 (daily ed. Dec. 19, 2009) ................................. 53

p. S13,726 (daily ed. Dec. 22, 2009) ................................. 45

p. S13,832 (daily ed. Dec. 23, 2009) ................................. 42

156 Cong. Rec.:

p. H179 (daily ed. Jan. 19, 2010) ...................................... 45

p. H2207 (daily ed. Mar. 22, 2010) ................................... 42

Dont Trust States To Create Health Care

Exchanges, USA Today, Jan. 4, 2010 ................................ 42


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Executive Comm. Meeting to Consider Health Care

Reform: Hearing Before the Senate Comm. on

Finance, 111th Cong., 1st Sess. (2009) ................................ 777 Fed. Reg. 30,378 (May 23, 2012) ................................. 10, 22

79 Fed. Reg. 3593 (Jan. 22, 2014) ............................................ 8

47 Million and Counting: Why the Health Care

Marketplace Is Broken: Hearing Before theSenate Comm. on Finance, 110th Cong., 2d Sess.(2008) ........................................................................................ 4

Jonathan Gruber, Written Testimony Before theHouse Comm. on Oversight & Govt Reform(Dec.9, 2014), http://oversight.house.gov/wp-content/uploads/2014/12/Gruber-Statement-12-9-

ObamaCare1.pdf ................................................................... 50Orrin G. Hatch et al., Why the Health-Care Bills Are

Unconstitutional, Wall St. J., Jan. 2-3, 2010 .................... 45

Healthcare Reform Roundtable (Part I): HearingBefore the Senate Comm. on Health, Education,

Labor, & Pensions, 111th Cong., 1st Sess. (2009) ........... 51

Health Reform in the 21st Century: InsuranceMarket Reforms: Hearing Before the House

Comm. on Ways & Means, 111th Cong., 1st Sess.(2009) ........................................................................................ 6

H.R. 3590, 111th Cong., 1st Sess. (2009) .............................. 47

H.R. 3962, 111th Cong., 1st Sess. (2009) ........................ 49, 51Joint Committee on Taxation, Technical Explana-

tion of the Revenue Provisions of the Reconcilia-tion Act of 2010, as Amended, in Combination

with the ACA (Mar. 21, 2010), https://www.jct.gov/publications.html?func=startdown&id=3673 .................. 48


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Timothy S. Jost,Health Insurance Exchanges:Legal Issues(2009), http://scholarship.law.

georgetown.edu/cgi/viewcontent.cgi?article=1022&context=ois_papers .................................................. 50

David D. Kirkpatrick,At State Level, Health LobbyFights Change, N.Y. Times, Dec. 29, 2009 ........................ 42

Learning from the States: Hearing Before the Sen-

ate Comm. on Health, Education, Labor, & Pen-

sions, 111th Cong., 1st Sess. (2009) ................................. 5, 7

Letter from Douglas W. Elmendorf, Dir., CBO, toRep. Darrell E. Issa, Chairman, Comm. on Over-sight & Govt Reform (Dec. 6, 2012),http://www.cbo.gov/sites/default/files/43752-

letterToChairmanIssa.pdf ................................................... 48Roundtable Discussions on Comprehensive Health

Care Reform: Hearing Before the Senate Comm.

on Finance, 111th Cong., 1st Sess. (2009) .......................... 6

Evan Saltzman & Christine Eibner, The Effect ofEliminating the ACAs Tax Credits In Federally

Facilitated Marketplaces(Jan. 2015), http://www.rand.org/content/dam/rand/pubs/research_reports/RR900/RR980/RAND_RR980.pdf ....................... 37

S. 1679, 111th Cong., 1st Sess. (2009) ................................... 49

S. 1796, 111th Cong., 1st Sess. (2009) ................................... 46

S. Rep. No. 89, 111th Cong., 1st Sess. (2009)........... 29, 47, 48Tri-Committee House Staff, House-Senate Compar-

ison of Key Provisions(Dec. 29, 2009), http://davidscott.house.gov/uploadedfiles/hscomparison.pdf .................................................................. 49

U.S. Dept of Health & Human Services:

Open Enrollment Week 9(Jan. 21, 2015),http://www.hhs.gov/healthcare/facts/blog/2015/01/open-enrollment-week-nine.html ................ 11


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Premium Affordability, Competition, and

Choice in the Health Insurance Marketplace,

2014(June 18, 2014), http://aspe.hhs.gov/health/reports/2014/premiums/2014mktplaceprembrf.pdf .................................... 11, 24

State Health Insurance Marketplaces(Nov. 3,2014), http://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/state-marketplaces.html ...............................................................................11

Summary Enrollment Report for the Initial

Annual Open Enrollment Period(May 1,2014), http://aspe.hhs.gov/health/reports/2014/MarketPlaceEnrollment/Apr2014/ib_

2014Apr_enrollment.pdf ............................................ 11U.S Dept of the Treasury,Form 1095-A,

http://www.irs.gov/pub/irs-pdf/f1095a.pdf ........................ 26


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In the Supreme Court of the United States

No. 14-114

DAVID KING,ET AL.,PETITIONERS

v.

SYLVIA BURWELL,SECRETARY OF HEALTH ANDHUMAN SERVICES,ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENTS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-41a) is reported at 759 F.3d 358. The opinion of thedistrict court (Pet. App. 42a-74a) is reported at 997F. Supp. 2d 415.

JURISDICTION

The judgment of the court of appeals was enteredon July 22, 2014. The petition for a writ of certiorari

was filed on July 31, 2014, and granted on November7, 2014. The jurisdiction of this Court rests on28 U.S.C. 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Pertinent provisions of the Patient Protection andAffordable Care Act (Affordable Care Act, ACA, or

(1)


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Act), Pub. L. No. 111-148, 124 Stat. 119, 1and otherrelevant statutes and regulations are set forth in theappendix to this brief. App., infra, 1a-79a.

STATEMENTThe Affordable Care Act was enacted to provide

Quality, Affordable Health Care for AllAmericans.Tit. I, 124 Stat. 130 (emphasis added). To achieve thatnational objective, the Act relies on three interde-pendent reforms: rules prohibiting insurers fromdenying coverage or increasing premiums because of apersons medical history; a tax penalty on people whofail to maintain health coverage; and federal tax cred-its subsidizing the purchase of insurance by peoplewho otherwise could not afford it. The tax credits are

made available through state-specific marketplacescalled Exchanges, which States may either establishfor themselves or allow the federal government toestablish in their stead.

In accordance with the Act, the Treasury Depart-ment has made tax credits available to eligible indi-viduals in every Statejust as the Acts other inter-locking reforms apply nationwide. Millions of Ameri-cans have relied on an Exchange to obtain affordablecoverage, and the percentage of Americans withoutinsurance has fallen sharply.2 More than 5 million of

the people who obtained coverage through Exchangesin 2014 lived in one of the 34 States with an Exchangeoperated by the federal government, and the over-

1 Amended by the Health Care and Education Reconciliation Actof 2010 (HCERA), Pub. L. No. 111-152, 124 Stat. 1029.

2 Ctrs. for Disease Control,Health Insurance Coverage: EarlyRelease of Quarterly Estimates from the National Health Inter-

view Survey5 (Dec. 16, 2014).


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whelming majority of those people relied on tax cred-its to pay their premiums each month.

In this suit, petitioners seek to upend the Act and

extinguish the coverage of millions of Americans bycontending that tax credits are available only in Statesthat establish Exchanges for themselves. The Actstext, structure, design, and history refute petitionersargument. As Treasury correctly concluded, federalpremium tax credits are available through the Ex-changes in every State.

A. Statutory Background

Before the ACA, millions of Americans had inade-quate health insurance or were forced to go withoutinsurance at all because they could not afford it or

because they were denied coverage based on theirmedical history. To solve those problems, the Actrelies on a combination of reforms predicated upon theavailability of tax credits subsidizing the purchase ofinsurance.

1. Before the Affordable Care Act, the individual

market for insurance was characterized by high

prices and widespread discrimination

Most Americans with private health coverage ob-tain it through an employer-sponsored plan. Congres-

sional Budget Office (CBO), Key Issues in AnalyzingMajor Health Insurance Proposals xi (Dec. 2008)(Key Issues). Congress has long supported broadaccess to employer-based coverage through favorabletax treatmenta subsidy worth hundreds of billionsof dollarsand rules prohibiting employer-sponsoredplans from discriminating based on medical history.

Id. at xi, 29-32, 79-80.


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Previously, however, Congresss efforts to make af-fordable coverage widely available left a gap in theindividual marketthe market for people who do

not receive coverage through an employer or a gov-ernment program. Individual-market insurance gen-erally did not receive favorable tax treatment. Key

Issues 9. Moreover, federal law generally did notprevent insurers in that market from increasing pre-miums, or denying coverage altogether, based on apersons medical history. Id. at 80-81. As a result,millions of people were denied insurance or chargeddramatically higher rates because of conditions ascommon as high blood pressure or asthma, and 80% ofpeople without access to coverage through an employ-

er or the government were uninsured. Id. at 9; 47Million and Counting: Why the Health Care Market-place Is Broken: Hearing Before the Senate Comm.on Finance, 110th Cong., 2d Sess. 52 (2008) (Mark A.Hall, Wake Forest Univ.).

2. States that adopted stand-alone nondiscrimination

rules suffered death spirals in their individual

insurance markets

In the 1990s, several States attempted to addressthe failures of the individual market by adoptingstand-alone nondiscrimination rules prohibiting insur-ers from denying coverage or increasing premiumsbased on medical history. The results were disas-trous. National Fedn of Indep. Bus.v. Sebelius , 132S. Ct. 2566, 2614 (2012) (NFIB) (Ginsburg, J., concur-ring in part and dissenting in part). Stand-alone non-discrimination rules encouraged people to wait untilthey bec[a]me ill to buy insurance because they couldnot be denied coverage or charged higher rates if theydid so. Ibid. That well-understood phenomenon,


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known as adverse selection, caused insurers to in-crease premiums to account for risk pools skewedtoward those in need of immediate medical carei.e.,

those who cost insurers the most.Ibid.

Higher pre-miums, in turn, encouraged still more people to deferpurchasing coverage until they had an immediatemedical need. Ibid.

That self-reinforcing cycle compelled insurers toraise premiums dramatically or to exit the marketaltogether, resulting in a death spiral. NFIB, 132S. Ct. at 2614 (Ginsburg, J., concurring in part anddissenting in part). All seven states that enactedstand-alone nondiscrimination rules in the 1990s suf-fered from skyrocketing insurance premium[s] and

reductions in individuals with coverage. Ibid. (cita-tion omitted).Massachusetts also adopted nondiscrimination

rules in the 1990s, and like the other States, it suf-fered a cycle of higher premiums and reduced cover-age. Learning from the States: Hearing Before the

Senate Comm. on Health, Education, Labor, & Pen-sions, 111th Cong., 1st Sess. 45 (2009) (Learning fromthe States) (Jon Kingsdale, Commonwealth HealthIns. Connector). In 2006, however, Massachusettsenacted further reforms requiring individuals to pay a

tax penalty if they failed to maintain health coverageand providing subsidies to make insurance affordable.

Id. at 9-10. Those reforms reduced the States unin-sured rate to just 2.6%by far the lowest in theNationand headed off adverse selection by encour-aging people to obtain coverage beforethey became ill.

Ibid .


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3. The ACAs reforms are predicated on tax credits

subsidizing the purchase of insurance

Congress drew on the States experiences in craft-

ing the ACA. Like prior state reforms, the Act adoptsnondiscrimination rules prohibiting insurers fromdenying coverage or charging higher rates based ona persons medical condition or history. 42 U.S.C.300gg to 300gg-4. But Congress expressly found thatthose rules, if enacted by themselves, would havetriggered the same adverse selection the Statessuffered in the 1990s. 42 U.S.C. 18091(2)(I).

That finding reflected the consensus view of stateregulators, industry participants, and outside experts.The National Association of Insurance Commissioners

(NAIC) cautioned that, given the risk of severe ad-verse selection, [s]tate regulators c[ould] supportnondiscrimination rules only if they were coupledwith an effective and enforceable individual purchasemandate and appropriate income-sensitive subsidies.

Roundtable Discussions on Comprehensive HealthCare Reform: Hearing Before the Senate Comm. on

Finance , 111th Cong., 1st Sess. 502-504 (2009) (SandyPraeger, NAIC); see, e.g., Addressing Insurance

Market Reform in National Health Reform: HearingBefore the Senate Comm. on Health, Education, La-

bor, & Pensions, 111th Cong., 1st Sess. 33-34 (2009)(Market Reform) (Karen Ignagni, Americas HealthIns. Plans). Economists likewise warned that nondis-crimination rules would inexorably drive [the indi-vidual market] into extinction unless they werepaired with a mandate on the individual to be in-sured and sufficient public subsidies toward thepurchase of health insurance. Health Reform in the

21st Century: Insurance Market Reforms: Hearing


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Before the House Comm. on Ways & Means, 111thCong., 1st Sess. 13 (2009) (Uwe E. Reinhardt, Prince-ton Univ.) (emphasis omitted).

Citing Massachusetts as a model, Congress soughtto minimize this adverse selection and broaden thehealth insurance risk pool, 42 U.S.C. 18091(2)(I), bycoupling nondiscrimination rules with an individual-coverage provision and tax credits subsidizing thepurchase of insurance. See 42 U.S.C. 18091(2)(D).The individual-coverage provision generally requiresindividuals to pay a tax penalty if they do not maintainhealth coverage. 26 U.S.C. 5000A; see NFIB , 132 S.Ct. at 2580, 2600 & n.11. Congress deemed that re-quirement essential to creating effective health in-

surance markets under nondiscrimination rules,explaining that it would prevent adverse selectionby achieving near-universal coverage. 42 U.S.C.18091(2)(D) and (I).

The individual-coverage provision could not servethat function without subsidies making coveragebroadly affordable. Subsidies must go hand in handwith an individual mandate because Congress cannotmandate people having something they cant afford.

Market Reform 59 (Praeger, NAIC); see ExecutiveComm. Meeting To Consider Health Care Reform:

Hearing Before the Senate Comm. on Finance , 111thCong., 1st Sess. 19 (2009) (Sen. Grassley) ([A] man-date to purchase coverage requires * * * Federalsubsidies to make sure that coverage is affordable.).Indeed, a key reason why States had adopted stand-alone nondiscrimination rules without a mandate wasthat they c[ould] not afford the necessary subsidies.

Learning from the States44-45 (Susan Besio, Office ofVt. Health Access).


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The ACAs structure and design are based on thoseprinciples. Congress provided refundable premiumtax credits subsidizing the purchase of insurance by

individuals with household incomes between 100% and400% of the federal poverty levelup to approximate-ly $95,000 for a family of four. 26 U.S.C. 36B.3 TheAct also provides payments subsidizing deductiblesand other cost-sharing expenses for recipients of thecredits with incomes in the lower half of that range.42 U.S.C. 18071(c)(2). Together, those subsidiesmake health coverage affordable for millions of Amer-icans. And in so doing, they allow the individual-coverage provision to create a large, diversified riskpool that will dampen the chances that the Acts

nondiscrimination rules could trigger a cycle of risingpremiums and declining enrollment. CBO,An Anal-ysis of Health Insurance Premiums Under the ACA 19-20 (Nov. 30, 2009) (Premium Analysis).

The Act directly links the individual-coverage pro-vision to the tax credits. The individual-coverageprovisions exemption for those who would haveto spend more than 8% of their income to obtaincoverage is based on the cost of insurance after thecredit allowable under section 36B. 26 U.S.C.5000A(e)(1)(B)(ii). And because the nondiscrimination

rules, individual-coverage provision, and tax creditswere designed to function together, Congress provid-ed that they would take effect on the same date,January 1, 2014. ACA 1255, 1401(e), 1501(d),10103(f)(1), 124 Stat. 162, 220, 249, 895.

3 The federal poverty level is currently $11,670 for an individualand $23,850 for a family of four. 79 Fed. Reg. 3593 (2014).


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4. The ACAs tax credits are furnished through state-

specific Exchanges operated by the States and by

HHS

The Act provides for the creation of Exchanges,which are state-specific marketplaces where consum-ers can compare and purchase private health insur-ance. 42 U.S.C. 18031(d). Exchanges are the Actsmethod for making tax credits available. Only indi-viduals who buy insurance through the Exchange intheir State are eligible for tax credits and cost-sharingsubsidies. 26 U.S.C. 36B; 42 U.S.C. 18071. The Ex-changes facilitate determinations regarding eligibilityfor credits and subsidies, 42 U.S.C. 18081, and alsofacilitate advance payments of the credits and subsi-

dies directly to insurers, 42 U.S.C. 18082.The Act provides that [e]ach State shall, not later

than January 1, 2014, establish an American HealthBenefit Exchange (referred to in this title as an Ex-change) for the State. 42 U.S.C. 18031(b)(1). Butthe Act affords State flexibility in the fulfillmentof that requirement. 42 U.S.C. 18041. A State mayelect[] to set up the Exchange for itself. 42 U.S.C.18041(b). Alternatively, if a State does not elect tocreate the Exchange itself, or if the Secretary ofHealth and Human Services (HHS) determines that

the State will not have the required Exchange opera-tional by January 1, 2014, then HHS shall establishand operate such Exchange within the State.42 U.S.C. 18041(c)(1).

An Exchange operated by HHS is known as a[f]ederally-facilitated Exchange. 45 C.F.R. 155.20.Though run by HHS, each federally-facilitated Ex-change is the same state-specific Exchange the Stateotherwise would have established. Insurers offering


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coverage on the Exchange are regulated by the Statein which the Exchange is located, see, e.g., 42 U.S.C.18021(a)(1)(C)(i), and premiums are based on rating

areas and risk pools unique to the State, 42 U.S.C.18021(a)(4), 18032(c).The Acts tax credits are provided in 26 U.S.C.

36B. Section 36B(a) provides that a credit shall beallowed for any applicable taxpayer, a term definedby income level and without regard to whether theState or HHS operates the Exchange in the taxpay-ers State. 26 U.S.C. 36B(c)(1)(A). Section 36B(b)then provides that the amount of the credit availableto a particular taxpayer is based in part on the premi-um paid for an insurance plan offered in the individu-

al market within a State that was enrolled inthrough an Exchange established by the State under[42 U.S.C. 18031]. 26 U.S.C. 36B(b)(2)(A). Anothersubclause of Section 36B cross-references Section36B(b)(2)(A) and uses the same phrase in defining acoverage month for which a credit is to be calculat-ed. 26 U.S.C. 36B(c)(2)(A)(i).

Through notice-and-comment rulemaking, Treas-ury concluded that tax credits are equally available onboth state-run and federally-facilitated Exchangesbecause an Exchange established by HHS for a par-

ticular State qualifies as an Exchange established bythe State under [Section 18031] within the meaningof Section 36B. 26 C.F.R. 1.36B-1(k), 1.36B-2(a); see77 Fed. Reg. 30,378 (2012). HHS has applied the sameinterpretation to the other provisions of the Act con-taining parallel language, including provisions ad-dressing such central matters as who can purchaseinsurance on an Exchange. See pp. 27-31, infra.


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B. The Operation Of The ACAs Exchanges

Thus far, 16 States and the District of Columbiahave established Exchanges for themselves, while 34

States have opted to have HHS do so in their place.4

In 2014, more than 5.3 million Americans selected aninsurance plan through one of the 34 federally-facilitated Exchanges. HHS, Summary Enrollment

Report for the Initial Annual Open EnrollmentPeriod 34 (May 1, 2014). More than 85% of them wereapproved for advance payments of the tax credits,and the credits financed the lions share of theirpremiumsan average of 76%. HHS, Premium Af-

fordability, Competition, and Choice in the HealthInsurance Marketplace, 2014, at 5 (June 18, 2014)

(Premium Affordability). Enrollment for 2015 is stillin progress, but already nearly 7 million customershave selected or been reenrolled in a plan through afederally-facilitated Exchange,5and coverage throughthe Exchanges is expected to continue to increasesubstantially in the coming years.

C. Proceedings Below

Petitioners are four individuals who live in Virgin-ia, which has a federally-facilitated Exchange. Pet.App. 1a, 9a. They do not wish to be eligible for tax

credits, and they filed this suit asserting that Con-4 HHS, State Health Insurance Marketplaces (Nov. 3, 2014),

http://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/state-marketplaces.html.

5 HHS, Open Enrollment Week 9(Jan. 21, 2015), http://www.hhs.gov/healthcare/facts/blog/2015/01/open-enrollment-week-nine.html. HHSs statistics include three States (Nevada, New Mexico,and Oregon) that established their own Exchanges but are relyingon HHS to make eligibility determinations. The 7 million figureincludes only the 34 federally-facilitated Exchanges.


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gress precluded Treasury from providing credits to allresidents of States with federally-facilitated Exchang-es. The district court dismissed the suit, holding that

the Act unambiguously forecloses petitioners claim.Id.at 42a-74a.The court of appeals affirmed. Pet. App. 1a-41a.

The court determined that the government has thebetter of the statutory construction arguments. Id.at 18a. But it concluded that Section 36B is ambigu-ous and it therefore upheld Treasurys interpretationunder Chevron U.S.A. Inc. v. NRDC, Inc. , 467 U.S.837 (1984) (Chevron). Pet. App. 33a.

Judge Davis concurred. Pet. App. 34a-41a. Heconcluded that Treasurys interpretation is not merely

permissible, but the only construction consistent witha holistic reading of the Acts text and proper atten-tion to its structure. Id. at 36a.

SUMMARY OF ARGUMENT

The court of appeals correctly held that the Afford-able Care Act authorizes Treasury to make premiumtax credits available on an equal basis to Americans inevery State, as one would expect in a statute designedto provide Affordable Coverage Choices for AllAmericans, Tit. I, Subtit. E, 124 Stat. 213 (emphasisadded). Petitioners contrary rendering of the Act

which rests on an acontextual misreading of a singlephrase in two subclauses of Section 36B and an im-plausible account of the Acts design and historywould thwart the Acts core reforms in the 34 Statesthat exercised their statutory prerogative to allowHHS to establish Exchanges for them. Those Stateswould face the very death spirals the Act was struc-tured to avoid, and insurance coverage for millions oftheir residents would be extinguished.


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I. The Acts text, structure, and history demon-strate that tax credits are available through the Ex-changes in every State.

Text.Section 36B(a) provides that a credit shallbe allowed to an applicable taxpayer. That term is

defined by income and without regard to whether theState or HHS operates the Exchange in the taxpay-ers State. In setting forth the formula used to calcu-late the credit available to a particular individual, twosubclauses of Section 36B refer to insurance obtainedthrough an Exchange established by the State under[42 U.S.C. 18031]. Contrary to petitioners claim,that phrase is a term of art that includes both an Ex-change a State establishes for itself and an Exchange

HHS establishes for the State. Section 36B thereforeauthorizes tax credits through the Exchanges in everyState, not merely in States that establish Exchangesfor themselves.

Section 18031(b)(1) expressly directs that [e]achState shall * * * establish an [Exchange]. But toafford State flexibility, the Act further provides thatif a State does not or cannot establish the requiredExchange for itself, then HHS shall * * * estab-lish and operate such Exchange within the State.42 U.S.C. 18041(c)(1) (emphasis added). The term

such Exchange conveys that an Exchange HHSestablishes as a statutory surrogate for a State fulfillsSection 18031(b)(1)s requirement that [e]ach Stateestablish an Exchange. For purposes of the Act,therefore, such an Exchange is an Exchange estab-lished by the State under Section 18031. The Actsdefinition of Exchange underscores that conclusionby defining the term to mean an American HealthBenefit Exchange established under section 18031.


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42 U.S.C. 300gg-91(d)(21). Petitioners acknowledgethat an Exchange HHS establishes for a State mustbe the same Exchange and function just like the

Exchange the State would otherwise have establishedfor itself. But a federally-facilitated Exchange couldnot function just like its state-run counterpart if taxcredits were unavailable.

Numerous other textual references confirm that in-terpretation. Section 36B itself does so, in a provision(Section 36B(f)) that specifically requires federally-facilitated Exchanges to report information to Treas-ury for the express purpose of administering the taxcreditsa requirement that would be pointless if taxcredits were not available on those Exchanges. And

other provisions of the Act use the phrase Exchangeestablished by the State (or an equivalent formula-tion) in contexts that necessarily include federally-facilitated Exchanges. Most strikingly, the Act de-fines a qualified individual eligible to shop on anExchange as a person who resides in the State thatestablished the Exchange. 42 U.S.C. 18032(f)(1)(A).Accordingly, if a federally-facilitated Exchange werenot established by the State, it would literally haveno customers. Petitioners reading of that phrasecannot be reconciled with this provision or with many

others.Structure and design. The Acts structure and de-

sign confirm that tax credits are available on the Ex-changes in every State.

First, tax credits are essential to the Acts nation-wide insurance-market reforms. Congress made anexpress legislative finding that the individual-coverage provision is essential to the effective im-plementation of the Acts nondiscrimination rules.


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But, as Congress knew, the individual-coverage provi-sion could not perform its market-stabilizing functionin the absence of subsidies making coverage broadly

affordable. The denial of tax credits and the resultingloss of customers would thus have disastrous conse-quences for the insurance markets in the affectedStates, which would remain subject to the Acts non-discrimination rules but without the safeguards Con-gress deemed essential to preventing death spirals.

Second, the availability of tax credits in every Stateis essential to the Acts model of cooperative federal-ism. Petitioners reading would transform Congressspromise of State flexibility, 42 U.S.C. 18041, into athreat that a State would suffer severe consequences

unless it established its own Exchange. To acceptpetitioners account, moreover, the Court would haveto accept that Congress adopted that scheme not in aprovision giving States clear notice of the consequenc-es of their choice, but instead by hiding it in isolatedphrases in the formula for calculating an individualstax credit. The Act should be interpreted to avoid thedisrespect for State sovereignty inherent in petition-ers reading.

History. Petitioners do not deny that their inter-pretation of Section 36B would thwart the operation of

the Acts central provisions in States with federally-facilitated Exchanges. Instead, they reverse-engineera description of the Acts design and history to fittheir misreading of Section 36B. Petitioners insistthat Congress intentionally threatened to impose adysfunctional regime on the States in order to pres-sure them to establish Exchanges for themselves, andthat Congress assumed that every State would com-ply. That notion is baseless.


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First, it was well understood when the Act waspassed that some States would not establish Exchang-es for themselves. The very fact that the Act provides

for federally-facilitated Exchanges demonstrates thatCongress thought that some States might decline* * * to participate in the operation of an ex-change. NFIB v. Sebelius , 132 S. Ct. 2566, 2665(2012) (Scalia, Kennedy, Thomas, & Alito, JJ., dissent-ing).

Second, the Acts tax credits are not structured asa conditional-spending program designed to inducethe States to take action. They arefederaltax creditsprovided to individualfederaltaxpayers as an integralpart of national reforms that apply whether or not the

States act. Had Congress actually intended to threat-en States with death spirals if they declined to estab-lish their own Exchanges, it would not have directedHHS to establish rump Exchanges that would bedoomed to fail.

Third, the Acts legislative record confirms that taxcredits are available in every State. During the timethe Act was under consideration, no Member ofCongress ever suggested that tax credits would beavailable only in States that established their ownExchangeseven though the language on which peti-

tioners rely was in draft bills for months before theAct was enacted. Any such suggestion would haveproduced a firestorm of controversy, but there wasnone.

Absurd Results. Petitioners largely ignore thecontradictions, anomalies, and absurdities their read-ing would create in other provisions of the Act. Theirresponse to the one absurdity they do confront at anylengththe fact that their reading would mean that


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there would be no individuals qualified to shopon federally-facilitated Exchangesfurther confirmstheir error, because they must invite the Court to

ignore or rewrite the relevant provisions of the Act instark derogation of the principles of textual interpre-tation to which they purport to adhere.

II. For the foregoing reasons, the Act clearlymakes federal tax credits available through the Ex-changes in every State. But even if there were someambiguity on that question, it would be resolved byTreasurys authoritative interpretation. That inter-pretation was adopted in notice-and-comment rule-making conducted pursuant to an express delegationof authority to implement Section 36B. It is thus

entitled to the full measure of Chevron deference.* * * * *

Petitioners invoke (Br. 17) judicial fidelity to therule of law and well-established interpretive princi-ples. But it is petitioners, not the government, whoseek to rewrite the Act. Determining the meaning ofa statute duly enacted by Congress, particularly astatute as consequential as this one, by focusing onisolated phrases divorced from textual cross-references, definitions, and contextand with noregard for the statutes structure and designdoes

not respect the rule of law. It subverts the rule of lawby denying appropriate respect to the choices Con-gress has made in the exercise of its democraticallyaccountable authority.

ARGUMENT

The Treasury Department regulation providing taxcredits to eligible Americans in every State is lawfuland should be upheld. All the tools of statutory inter-pretationtext, structure and design, purpose, histo-


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ry, and consequencespoint to the same answer: taxcredits are available on the Exchanges in every State.

The Act makes clear in myriad ways that all three

essential pillars of the statutory scheme function thesame way in every State. The nondiscriminationrulesthe Acts core reforms eliminating restrictionsthat had denied coverage to millions of Americansapply to insurers in every State. The individual-coverage provisionwhich Congress deemed an es-sential complement to the nondiscrimination rules, 42U.S.C. 18091(2)(I)applies to individuals in everyState. And the tax credits necessary to enable thenondiscrimination rules and individual-coverage pro-vision to function are likewise available to eligible

individuals in every Stateas one would expect giventhe interlocking, mutually reinforcing character of theActs structure and design.

Seizing on isolated phrases in this complex andtechnical statute and giving them a meaning divorcedfrom statutory context, petitioners advance a radicallydifferent conception of the Acts operation. Theyassert that Congress designed the Act principally toensure that States set up the Exchanges that imple-ment the Acts reformsrather than to ensure thatthose reforms actually get implemented to give all

Americans equal access to affordable coverage. Tothat end, petitioners claim, Congress threatened theStates with an unworkable regime that would denytheir residents tax credits and roil their insurancemarkets unless the States established Exchanges forthemselves.

But Congress did not adopt such a self-defeatingscheme. Nor did it engage the States in the high-stakes game of chicken that petitioners posit. Indeed,


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it is implausible to think Congress would have doneso, and there is no contemporaneous evidence thatCongress sought to do anything of the kind. The Act

was debated, evaluated, and passed under the univer-sal understanding that tax credits would be availablein every Stateincluding States with federally-facilitated Exchanges. There is thus no basis in theActs text, structure, or history for the result thatpetitioners seek.

I. THE AFFORDABLE CARE ACT MAKES FEDERAL

TAX CREDITS AVAILABLE ON EXCHANGES IN

EVERY STATE

A. The Text Of 26 U.S.C. 36B And The Other Directly

Applicable Provisions Makes Clear That Tax Credits

Are Available On Exchanges In Every State

In 26 U.S.C. 36B(a), Congress provided that apremium tax credit shall be allowed to any applica-ble taxpayer. That term is defined as a taxpayerwhose household income is between 100% and 400% ofthe federal poverty level. 26 U.S.C. 36B(c)(1)(A).Section 36B(a) thus defines all income-eligible tax-payers as potentially eligible to receive a creditregardless of their State of residence or whether thatState has elected to operate its own Exchange.

Petitioners nevertheless insist that Congress de-nied credits to all residents of States with federally-facilitated Exchanges. They divine that categoricalbar in a phraseestablished by the State under[Section 18031]contained in two subclauses settingforth the formula for calculating the amount of thecredit available to a particular individual purchasinginsurance on an Exchange. 26 U.S.C. 36B(b)(2)(A)and (c)(2)(A)(i). Petitioners assert (Br. 20) that be-


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cause HHS is not a State, the amount of the creditavailable to a taxpayer who uses a federally-facilitatedExchange is always zero.

It would be astonishing if Congress had buried acritically important statewide bar to the subsidiesunder this landmark legislation in subclauses settingforth the technical formula for calculating how muchthe subsidy should be. In fact, as demonstrated be-low, Congress did no such thing: The phrase Ex-change established by the State under Section 18031is a term of art that includes an Exchange establishedfor the State by HHS.

1. Tax credits are available on all Exchanges because

the phrase Exchange established by the State

under Section 18031 is a term of art that includesa federally-facilitated Exchange

a. The relevant question in interpreting the lan-guage on which petitioners rely is not whether HHSis a State. It is whether the statutory phraseExchange established by the State under Section18031 includes an Exchange that HHS establishes asa surrogate for the State, as authorized by 42 U.S.C.18041. That question cannot be answered by a myopicfocus on that phrase alone: The plain meaning that[courts] seek to discern is the plain meaning of thewhole statute, not of isolated sentences. Beecham v.United States, 511 U.S. 368, 372 (1994).

That principle applies with special force to a com-prehensive statute like the ACA. Given its manycross-references and interrelated provisions, the Actis not a chef doeuvre of legislative draftsmanship.Utility Air Regulatory Grp. v.EPA, 134 S. Ct. 2427,2441 (2014) (UARG). But that does not grant licenseto determine the meaning of statutory language in


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isolationparticularly when the term is a technicalone that defines how an interlocking system of re-forms will operate. To the contrary, when interpret-

ing statutes like this one, it is especially important torespect the fundamental canon of statutory construc-tion that the words of a statute must be read in theircontext and with a view to their place in the overallstatutory scheme. FDA v. Brown & WilliamsonTobacco Corp., 529 U.S. 120, 133 (2000) (Brown &Williamson)(citation omitted). Indeed, the phrase onwhich petitioners seize itself includes a cross-reference and a defined term, making clear that itcannot be read in isolation. There is no such thing asa plain meaning of an Exchange established by the

State under Section 18031 that does not take intoaccount Section 18031 and related provisions.b. The three statutory provisions that together

set forth how Exchanges will be established andoperatedSection 18031, Section 18041, and the Actsdefinition of Exchangedemonstrate that an Ex-change established by HHS for a particular Statequalifies as an Exchange established by the Stateunder Section 18031. The phrase is a statutory termof art. As petitioners concede (Br. 26), Congress isalways free to create a term of art or to give words

used in a statute a broader or different meaningthan they would ordinarily have. Mohamadv. Pales-tinian Auth., 132 S. Ct. 1702, 1707 (2012). It has doneso here.

Section 18031 expressly provides that every Statewill be served by an Exchange that is established bythat State. It directs that [e]ach Stateshall, not laterthan January 1, 2014, establish an American HealthBenefit Exchange (referred to in this title as an Ex-


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change) for the State. 42 U.S.C. 18031(b)(1) (em-phasis added). The requirement that each State es-tablish an Exchange need not, however, be imple-

mented by the State itselfa mandate that Congresscould not have imposed, Printz v. United States, 521U.S. 898, 926-927 (1997). Rather, Section 18041, whichis entitled State flexibility in operation and enforce-ment of Exchanges and related requirements,furnishes alternative means by which Section18031(b)(1)s requirement may be fulfilled. A Statemay elect[] under Section 18041(b) to establish theExchange for itself if it does so by a date specified byHHS. See 45 C.F.R. 155.100, 155.105 (regulationsgoverning HHS review and approval of state elec-

tions). But if a State opts not to do so, or if HHSdetermines that a State that attempted to set upan Exchange will not have the required Exchangeoperational by January 1, 2014, then HHS shall* * * establish and operate such Exchange withinthe State. 42 U.S.C. 18041(c)(1) (emphasis added).6

The use of the phrase such Exchange conveysthat the Exchange to be established by HHS for theState isthe required Exchange referenced earlier inthe same sentencethat is, the Exchange requiredby Section 18031(b)(1), which provides that each

State shall * * * establish an [Exchange]. SeeBlacks Law Dictionary 1570 (9th ed. 2009) (suchmeans [t]hat or those; having just been mentioned).

6 The Act also provides another means by which a State may beserved by an Exchange that is established by the State underSection 18031 even if the State does not establish that Ex-change for itself: A State may permit[] a [r]egional or otherinterstate Exchange to operate within its borders. 42 U.S.C.18031(f); see 77 Fed. Reg. at 30,378.


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Section 18041(c)(1) empowers HHS, acting as thelegislatively authorized surrogate of the State, toestablish the Exchange that Section 18031(b)(1) re-

quires [e]ach State to establish. For purposes of theAct, therefore, an Exchange created for a particularState by HHS is an Exchange established by theState under Section 18031.

The applicable statutory definition reinforces thatconclusion. Exchange is defined to mean an Amer-ican Health Benefit Exchange established undersection 18031. 42 U.S.C. 300gg-91(d)(21) (emphasisadded); see 42 U.S.C. 18111. Accordingly, when Sec-tion 18041(c)(1) directs HHS to establish an Ex-change for a particular State, the resulting Exchange

is, by definition, established under section 18031.See Western Union Tel. Co.v. Lenroot, 323 U.S. 490,502 (1945) ([S]tatutory definitions of terms usedtherein prevail over colloquial meanings.). And anExchange established under section 18031 is neces-sarily an Exchange established by the State, be-cause Section 18031 provides for each State to estab-lish an Exchange and does not contemplate any othersort of Exchange.7

7 Petitioners note (Br. 26-27) that Congress did not state that an

Exchange created by HHS is deemed to be established by theState or provide, as it did with respect to federal territories, thatHHS shall be treated as a State when it creates an Exchange.42 U.S.C. 18043(a)(1). But Congress was not required to usepetitioners preferred formulations, and the fact that it could haveaccomplished the same result by phrasing the statute differentlyis no reason to disregard the statute as written. United Statesv.Aguilar, 515 U.S. 593, 604 (1995). Petitioners invocation of theprovision addressing territories is particularly inapposite becausethat provision serves a different function: It makes territorieseligible for federal grants available to States, 42 U.S.C. 18031(a),


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c. Notably, one thing Section 18041 does not do isprovide any notice to a State that its residents willsuffer the loss of tax credits if the State does not es-

tablish an Exchange for itself. Had Congress intend-ed to impose that consequence, it would surely havespelled that out in Section 18041which sets forthStates options for establishing Exchangesso thatStates could evaluate the implications of their choice.

Instead, Section 18041 does the opposite. Con-sistent with Congresss statutorily-specified purposeto afford State flexibility, Section 18041 informs aState that if it does not elect to establish the re-quired Exchange, HHS will establish an equivalentExchange (i.e.,such Exchange) for it. Petitioners in

fact concede (Br. 22) that Section 18041(c)(1) requiresHHS to establish the same Exchange that wouldexist if the State established the Exchange for itself,and that an Exchange created by HHS must operatejust like the Exchange the state would otherwisehave established. But a federally-facilitated Ex-change could not be the same Exchange or functionjust like its state-run counterpart if tax credits wereunavailable. The point of creating an Exchange is toprovide a marketplace where consumers can use cred-its to obtain affordable coverage, as the overwhelming

majority of people buying insurance on Exchangeshave done. Premium Affordability 5. An Exchangewithout credits would be a rump Exchange bearinglittle resemblance to its state-run counterpartif itcould operate at all. Seepp. 27-29, 36-38, 44, infra.

but it does not authorize tax credits on territorial Exchanges ormake such Exchanges equivalent to their state counterparts for allpurposes. See 42 U.S.C. 18043(a).


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Indeed, the terms of Section 18031 and other relat-ed provisions of the Act prescribe a central role forExchanges in making credits available. Exchanges

must provide information about credits and assistindividuals in applying for them, including by makingavailable a calculator to allow individuals to determinethe cost of insurance after the application of anypremium tax credit available under Section 36B.42 U.S.C. 18031(d)(4)(G); see 42 U.S.C. 18031(c)(5)and (i)(3). Exchanges process applications for creditsand cost-sharing subsidies and notify applicants of theresults. 42 U.S.C. 18081(a), (b)(3) and (c)-(e). AndExchanges help administer the advance payment ofcredits and subsidies to insurers. 42 U.S.C. 18082.

Accordingly, an Exchange without tax credits simplywould not be an Exchange under the Act.

2. Section 36B(f) makes clear that tax credits are

available to eligible taxpayers through the Ex-

changes in every State

Section 36B itself confirms that tax credits areavailable in States with federally-facilitated Exchang-es. Subsection (f) of that Section, entitled Reconcilia-tion of credit and advance credit, provides for reduc-tion of taxpayers year-end tax credits by the amountof advance payments made during the year. To allowTreasury to make that reconciliation, Section 36B(f)(3)requires each Exchange to provide specified infor-mation to Treasury and to individuals who purchaseinsurance on the Exchange. All of the required infor-mation is used in administering the credits and ac-companying subsidies. Among other things, eachExchange must report the amount of any advancepayment of credits and subsidies; information nec-essary to determine eligibility for, and the amount of,


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[the] credit; and [i]nformation necessary to deter-mine whether a taxpayer has received excess advancepayments. 26 U.S.C. 36B(f)(3)(C), (E) and (F); see

Treasury,Form 1095-A

, http://www.irs.gov/pub/irs-pdf/f1095a.pdf (implementing Section 36B(f)(3)).As petitioners concede (Br. 45), this reporting re-

quirement applies to all Exchangesindeed, Section36B(f)(3) contains the Acts only direct reference tofederally-facilitated Exchanges outside of Section18041(c) itself. 8 But Congress would have had noreason specifically to require federally-facilitatedExchanges to report information for the express pur-pose of [r]econciliation of credit and advance creditif credits were categorically unavailable through those

Exchanges. Subsection (f

) thus confirms what Sub-section (a) indicatesthat tax credits are available toindividuals through the Exchanges in all States.9

8 Section 36B(f)(3)s reference to each Exchange encompassesfederally-facilitated Exchanges, but the reporting obligation alsospecifically applies to any person carrying out 1 or more respon-sibilities of an Exchange under 42 U.S.C. 18041(c), a provisionauthorizing HHS to operate a federally-facilitated Exchangethrough agreement with a not-for-profit entity.

9 Straining to come up with an alternative explanation for thesereporting requirements, petitioners speculate (Br. 45-47) that

Congress intended the reported information to be used for otherpurposes, such as enforcing the individual-coverage provision. Butthere is no need to speculate. Section 36B(f) identifies the purposefor which the reports were required: to allow Treasury to[r]econcil[e] payments of the credit and the advance credit.That some of the information required for that function can alsobe put to other uses is immaterial. And enforcement of the indi-vidual-coverage provision cannot explain Congresss inclusion offederally-facilitated Exchanges in Section 36B(f)(3) because an-other provision separately required insurers to provide the infor-mation necessary to enforce the individual-coverage provision,


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3. Other provisions of the Act using equivalent

language confirm that an Exchange established for

a State by HHS qualifies as an Exchange estab-

lished by the State under Section 18031

Other key provisions of Titles I and II of the ACAalso contain the phrase Exchange established by theState under Section 18031 or an equivalent formula-tion. As used in those provisions, that phrase plainlyincludes federally-facilitated Exchanges. Given thestandard principle of statutory construction thatidentical words and phrases within the same statuteshould normally be given the same meaning,PowerexCorp.v. Reliant Energy Servs., Inc. , 551 U.S. 224, 232(2007), those provisions powerfully confirm that an

Exchange established for a State by HHS qualifies asan Exchange established by the State under [Section18031] within the meaning of Section 36B. See Unit-ed Sav. Assn of Tex. v. Timbers of Inwood Forest

Assocs., Ltd. , 484 U.S. 365, 371 (1988) (A provisionthat may seem ambiguous in isolation is often clarifiedby the remainder of the statutory scheme * * *because the same terminology is used elsewhere in acontext that makes its meaning clear.).

a. Most notably, if petitioners were correct that afederally-facilitated Exchange is not an Exchange

established by the State, no individual would beeligible to purchase insurance on federally-facilitatedExchanges and no individual-market plans could besold there.

Only qualified individuals may purchaseindividual-market policies sold on an Exchange.

without all of the additional credit-specific information requiredby Section 36B(f)(3). 26 U.S.C. 6055.


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42 U.S.C. 18031(d)(2)(A) (An Exchange shall makeavailable qualified health plans to qualified individualsand qualified employers.).10 A qualified individual

is one who, among other things, resides in the

State that established the Exchange . 42 U.S.C.18032(f)(1)(A)(ii) (emphasis added). Because an Ex-change established by HHS for a particular Statequalifies as an Exchange established by the State,HHSs regulations provide that otherwise-eligibleindividuals who reside in a State with a federally-facilitated Exchange are qualified individuals per-mitted to shop on that Exchange. 45 C.F.R. 155.20(definitions of qualified individual and Exchange);45 C.F.R. 155.305(a)(3) (eligibility for enrollment

through an Exchange). That interpretation is not onlyreasonable and entitled to Chevron deference; it isessential to a viable construction of the Act. If anExchange created by HHS for a State were not es-tablished by the State under the Act, there would beno qualified individuals in any State with a federally-facilitated Exchangeand Congress would have di-rected HHS to create Exchanges on which no onecould lawfully shop.

The absence of qualified individuals in States withfederally-facilitated Exchanges would yield a further

impossibility: To certify a plan as a qualified healthplan eligible to be sold, an Exchange must determinethat making available such health plan through suchExchange is in the interests of qualified individualsand qualified employers in the State. 42 U.S.C.

10 The Acts references to qualified employers are to small bus-inesses eligible to purchase group coverage through a SHOP Ex-change, a distinct type of Exchange not at issue here. 42 U.S.C.18031(b)(1)(B).


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18031(e)(1)(B) (emphasis added). An Exchange couldnot make that determination with respect to anindividual-market plan if there were no qualified

individuals in its State. Accordingly, if a federally-facilitated Exchange were not an Exchange estab-lished by the State, such an Exchange not only wouldhave no customers; it also would have nothing to sell.

b. The Acts Medicaid maintenance-of-effort provi-sion likewise confirms this reading. As a condition ofreceiving federal Medicaid funds, a State must main-tain its Medicaid eligibility standards for adults fromthe date of the Acts passage until the date on whichan Exchange established by the State undersection 18031 is fully operational. 42 U.S.C.

1396a(gg)(1). Congress intended that provision to bea temporary one, expiring on January 1, 2014, whenExchangesboth state-run and federally-facilitatedwould become operational in every State. See S. Rep.No. 89, 111th Cong., 1st Sess. 68 (2009) (Senate Fi-nance Report) (requirement would continue throughDecember 31, 2013); 42 U.S.C. 1396a(gg)(3) (an ex-ception for States with budget deficits end[ed] onDecember 31, 2013).

HHS informs this Office that since January 1, 2014,nine States with federally-facilitated Exchanges (in-

cluding petitioners amici Oklahoma, Indiana, andNebraska) have relied on the expiration of themaintenance-of-effort requirement to tighten theirMedicaid eligibility standards. HHS has approvedthose amendments to the States Medicaid plans inactions entitled to Chevron deference. See Douglas v.

Independent Living Ctr. of S. Cal., Inc., 132 S. Ct.1204, 1210 (2012). But if a federally-facilitated Ex-change did not qualify as an Exchange established by


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dren through Exchanges. The Act provides that, inthe event CHIP funding proves insufficient, a partici-pating State shall establish procedures to enroll

CHIP-eligible children in coverage offered throughan Exchange established by the State under section18031. 42 U.S.C. 1397ee(d)(3)(B). Congress furtherdirected that, [w]ith respect to each State, HHSmust review the insurance plans offered throughan Exchange established by the State under section18031 and certify those plans that are suitablefor enrollment of eligible children. 42 U.S.C.1397ee(d)(3)(C) (emphasis added). If a federally-facilitated Exchange were not an Exchange estab-lished by the State under section 18031, HHS and the

States could not satisfy those requirements in Statesthat did not establish their own Exchanges.

4. Petitioners reading of the phrase an Exchange

established by the State under Section 18031

collapses under the cumulative weight of the

myriad inconsistencies it creates

Petitioners claim of fidelity to the statutory text isthus baseless. Indeed, to accept petitioners reading,the Court would have to accept that Congress createda statute that:

Requires federally-facilitated Exchanges to re-port information for a [r]econciliation of taxcredits that could never occur, 26 U.S.C.36B(f);

Requires federally-facilitated Exchanges toestablish processes for calculating and distrib-uting tax credits that would never be available,


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42 U.S.C. 18031(d)(4)(G), (c)(5) and (i)(3),18081, 18082;

Requires the creation of federally-facilitatedExchanges on which there would quite literallybe no qualified individuals eligible to shop,42 U.S.C. 18032(f)(1)(A)(ii);

Requires the creation of federally-facilitated

Exchanges on which there would be no quali-fied health plans eligible to be sold, 42 U.S.C.18031(e)(1)(B);

Imposes a permanent freeze on Medicaid eligi-

bility in States that decline to operate Ex-changes for themselves, in the guise of a transi-tional [m]aintenance of effort provision de-signed to expire at the end of 2013, 42 U.S.C.1396a(gg)(1);

Directs States, as a condition of continued par-ticipation in Medicaid, to satisfy coordinationrequirements that could not be met in Stateswith federally-facilitated Exchanges, 42 U.S.C.1396w-3(b);

Directs HHS and States participating in theCHIP program to take steps that could notbe accomplished in States with federally-facilitated Exchanges, 42 U.S.C. 1397ee(d)(3).

In short, to make their reading of established bythe State under Section 18031 fit with the rest of theAct, petitioners must rewrite so many of the Actsprovisions, and explain away or ignore so many textu-


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al incongruities and contradictions, that their argu-ment collapses under its own weightwholly apartfrom the havoc it would wreak on the Acts structure

and design, see pp. 35-41,infra

. The governmentsinterpretation, in contrast, allows the Act to functionas a symmetrical and coherent regulatory scheme,

Brown & Williamson, 529 U.S. at 133 (citation omit-ted), with no need to rewrite, explain away, or ignoreany of its provisions.

5. The phrase established by the State under Section

18031 serves to identify the Exchange in a

particular State, not to exclude a federally-

facilitated Exchange

Petitioners contend (Br. 20, 27-28) that the gov-

ernments interpretation renders the phrase estab-lished by the State under Section 18031 superfluous.They are mistaken. As the use of that phrase in Sec-tion 36B and throughout the Act demonstrates, itserves to identify the Exchange in a particular State.Its presence or absence in the Acts provisions reflectsstyle and grammarnot a substantive limitation onthe type of Exchange at issue.

An Exchange is a state-specific marketplace, andSection 36B(b)(2)(A) uses the phrase Exchangeestablished by the State under [Section 18031]because it is referring to the Exchange in the specificState mentioned earlier in the same sentence: Theformula for tax credits depends on the cost of one ormore insurance plans offered in the individual mar-ket within a State * * * which were enrolled inthrough an Exchange established by the State under[Section 18031]. 26 U.S.C. 36B(b)(2)(A) (emphasisadded); see 26 U.S.C. 36B(c)(2)(A) (cross-referencingSection 36B(b)(2)(A)). In like manner, the other ref-


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erences to an Exchange established by the State inthe relevant Titles of the Act refer to the Exchange ina specific State, typically one identified elsewhere in

the same provision.

11

In contrast, when a provision of Section 36B ad-dressing Exchanges does not refer to the Exchange inan earlier-referenced State, the phrase establishedby the State under [Section 18031] is omitted. 26U.S.C. 36B(d)(3), (e)(3) and (f)(3). That phrase is alsomissing from numerous other provisions of the Actaddressing the tax credits and subsidies availablethrough Exchanges. See, e.g., 29 U.S.C. 218b(a)(2); 42U.S.C. 18032(e)(2), 18033(a)(6)(A), 18051(d)(3)(A)(i),18052(a)(3), 18071(b)(1), (d)(1) and (e)(3), 18082. All of

those provisions concern tax credits and the accompany-ing subsidies, and on petitioners reading they shouldapply only to an Exchange established by a State underSection 18031. Yet none of them contain thatlimitationthey refer to credits and subsidies available

11 42 U.S.C. 1396a(gg)(1) (a State must maintain Medicaideligibility standards until an Exchange established by the Stateis operational); 42 U.S.C. 1396w-3(b) ([a] State must coordinateits Medicaid and CHIP programs with an Exchange establishedby the State); 42 U.S.C. 1397ee(d)(3)(B) and (C) ([w]ith respect toeach State, HHS must certify health plans offered through an

Exchange established by the State and the State must establishprocedures for enrolling eligible children in such plans); 42 U.S.C.18031(f

)(3)(A) ([a] State may elect to authorize an Exchangeestablished by the State to contract with third parties to carry outExchange functions); 42 U.S.C. 18032(f)(1)(A) (a qualified individ-ual is one who resides in the State that established the Ex-change) (all emphases added). One provision in Title VI of theAct, 6005, 124 Stat. 698, which is otherwise unrelated to Ex-changes, refers more generally to an exchange established by aState under section 18031. 42 U.S.C. 1320b-23(a)(2) (emphasisadded).


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through Exchanges, and some of them actually useother formulations that even petitioners concede(Br. 13) clearly encompass HHS Exchanges. See

42 U.S.C. 18051(d)(3)(A)(i), 18052(a)(3).It strains credulity to insist, as petitioners must,that Congress limited tax credits to States that estab-lish Exchanges for themselves by including the modi-fier established by the State under [Section 18031]in two subclauses of Section 36B, yet omitted thatpurportedly crucial limiting language from all of theActs myriad other references to the credits and sub-sidies available on Exchanges. That pattern raises nosuch difficulty ifas the text of the relevant provi-sions makes clearthe modifier serves not to exclude

federally-facilitated Exchanges, but merely to refer tothe Exchange in a particular State identified else-where in the same provision.

B. The ACAs Structure And Design Confirm That Tax

Credits Are Available Through The Exchanges In

Every State

Interpreting Section 36B to make tax credits avail-able through the Exchanges in every State is essentialto the effective operation of the Acts insurance-market reforms and to its framework of cooperativefederalism. That interpretation harmonizes the rele-vant provisions of the Act, allowing them to accom-plish their manifest objects. Abramski v. United

States, 134 S. Ct. 2259, 2269 (2014). Petitioners read-ing, in contrast, would deny effect to the regulatoryscheme by subverting the Acts structure and design.

Ibid.


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1. The availability of tax credits on Exchanges in

every State is essential to the Acts insurance-

market reforms

The structure and design of the Acts insurance-market reforms require that tax credits be availableon Exchanges in every State. The Acts nondiscrimi-nation rules apply in every State, whether or not theState establishes an Exchange for itself. 42 U.S.C.300gg to 300gg-4. The individual-coverage provisionlikewise applies nationwide. 26 U.S.C. 5000A. Con-gress found that the individual-coverage provisionis essential to preserving effective health insurancemarkets under the Acts nondiscrimination rules.42 U.S.C. 18091(2)(I). Tax credits are in turn indis-

pensable to the operation of the individual-coverageprovision, because that provision cannot perform itsessential market-stabilizing function without them.See pp. 6-8, supra.

If tax credits were no longer available in Stateswith federally-facilitated Exchanges, the vast majorityof the millions of people currently relying on themto pay for insurance would be exempt from theindividual-coverage provision because they would notbe able to afford insurance. Linda J. Blumberg et al.,The Implications of a Supreme Court Finding for the

Plaintiff in King vs. Burwell 6 (Jan. 2015) (Implica-tions); see 26 U.S.C. 5000A(e)(1).12 In those circum-stances, the individual-coverage provision would notproduce a risk pool broad enough to avoid adverseselection and ensure effective health insurance mar-

12 A small percentage of people denied subsidies would remainsubject to the individual-coverage provision because the cost ofcoverage would be less than 8% of their income. Implications6.


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kets. Too few people would be able to afford cover-age, and too few would be subject to the incentivizingeffect of the tax penalty.

With neither subsidies nor an effective individual-coverage provision, States with federally-facilitatedExchanges would face the same death spirals experi-enced by States that enacted stand-alone nondiscrimi-nation rules in the 1990sthe very thing the Act wasdesigned to avoid. Recent studies confirm that elimi-nation of tax credits would result in sharp premiumincreases and enrollment declines, causing signifi-cant instability and threatening the viability of themarket[s]. Evan Saltzman & Christine Eibner, The

Effect of Eliminating the ACAs Tax Credits In Fed-

erally Facilitated Marketplaces 5-6 (Jan. 2015) (47%premium increases and 70% reductions in individual-market enrollment); Implications 1 (35% premiumincreases and 69% enrollment reductions). And thoseharms would not be confined to the Exchanges. Be-cause the entirety of the affected States individualmarkets would be subject to the nondiscriminationrules and the resulting adverse-selection pressure,everyone purchasing coverageeven those not cur-rently shopping on Exchanges or relying on creditswould face skyrocketing premiums. Ibid.

Accordingly, petitioners reading would throw adebilitating wrench into the Acts internal economicmachinery. Pet. App. 29a. And contrary to petition-ers suggestion (Br. 31), that objection cannot bebrushed aside as an appeal to generalized statutorypurpose or vague notions of congressional intent.Rather, it reflects a bedrock principle of statutoryinterpretation: Where, as here, a proffered interpre-tation of one provision of a statute would be incon-


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sistent within fact, would overthrowthe Actsstructure and design, it must be rejected. UARG,134 S. Ct. at 2443.

2. The availability of tax credits on Exchanges inevery State is essential to the Acts model of coop-

erative federalism

Petitioners interpretation would also subvert thecooperative-federalism design of the Acts insurancemarket reforms. As Section 18041 reflects, the Actoffers States a real choice. Congre

king v. burwell - government reply brief

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