Afternoon Must-Read: Tim Jost: Another Perspective on King v. Burwell

There is no evidence in the extensive record of congressional committee hearings or debates that this is what Congress intended. The members of Congress who in fact drafted the legislation have represented [PDF] to the Supreme Court that this claim is false. Moreover, the states [PDF] did not understand that premium tax credits would be limited to state-operated exchanges when they were deliberating…. The phrase ‘Exchange established by the State’ in fact appears ten times in the ACA…. As a condition of having a state Medicaid program… a state must, as of January 1, 2014 have in place procedures for enrolling in Medicaid and CHIP eligible individuals who are identified through an ‘Exchange established by the State.’… As a condition of approval of a state CHIP program, HHS must… review the benefits offered… by qualified health plans through an ‘Exchange established by the State’ and certify that they are least comparable…. So how can we avoid shutting down the Medicaid and CHIP programs, and destroying the individual insurance markets in two thirds of the states? It is simple. The court should read carefully all of the provisions of the law relevant to the federal exchange and premium tax credits so as to achieve a ‘harmonious whole,’ the way the court has often said statutes should be read…. The court must either decide that the word ‘by’ in § 1401 is the only word that matters in the ACA, and ignore over 50 provisions that support the contention that the federal marketplace can be, given the way the term is used in the statute as a term of art, an exchange established by the state…. [It can] use the doctrine of constitutional avoidance to rule for the plaintiffs since otherwise the threat to the states would raise constitutional coercion and notice requirements…. It can simply affirm the Fourth Circuit’s decision to defer to the IRS’s interpretation of the statute under Chevron…