Retracing the Legislative History Behind King V. Burwell

Remember the case of the dog that did not bark in the night?

If you want to count the “digital” and “paper” versions of trees that have been killed in trying to argue about the upcoming Supreme Court review of the legal challenge to an IRS rules that tried to authorize tax credit subsidies for insurance coverage in federal-established health exchange under the Affordable Care Act, go ahead. I’ve lost count and given up, and that’s just looking at the official briefs filed on both sides.

Several amici briefs come close to showing the key ways the Congress that barely passed the final law in March 2010 signaled that its actual text authorized those tax credits only for qualified plans in “an Exchange established by the State under [section] 1311” of the Patient Protection and Affordable Care Act. Jonathan Adler and Michael Cannon have continued their path-breaking analysis of how Congress got to the point at which the Senate bill, approved in late December 2009, ended up being the “last helicopter out of Saigon” and became the final law that Congress “had” to approve the following March.

They also examine how an earlier version of the ultimate bill was approved by the Senate HELP committee and deliberately took away tax credits from any exchange in a state that failed to comply with various new federal insurance rules. Another amicus brief filed in late December by the Mountain States Legal Foundation hits some of the edges of this legislative history issue as well.

However, another astute Washington, DC-based attorney recently pointed out to several critics of the ACA, including me, how that isn’t the end of this legal story, which shows that the actual law passed by Congress never authorized tax credits for federal exchanges:

The first Senate version of what was to become the ACA was reported from the Senate Committee on Health, Education, Labor, and Pensions (“HELP”) on September 17, 2009, as S. 1679, the Affordable Health Choices Act.   In that bill the States were given a 4-year period following enactment to establish a “Gateway”—a Health Insurance Exchange.  If a State failed or refused to establish a “Gateway” at the   end of that period the Secretary of Health and Human Services was directed to establish and operate a Federal Fallback “Gateway” in that State.

Expressly stated in S. 1679’s Federal Fallback established by the Secretary was a direct stipulation that the residents of that State “shall be eligible for premium credits” to pay for qualified health plans under certain conditions.  See S. 1679, proposed Public Health Service Act section 3104(d)(1)(D).  The bill explicitly tied the availability of the premium credits to the Federal Fallback “Gateway” and closely expressed then what is now only imagined to be included in the statutory text at issue in King v. Burwell.

That clear and explicit authorization that premium tax credits were also available through a “Gateway” established by the Secretary of Health and Human Services was subsequently not included in the version of the ACA later reported from the Senate Committee on Finance on October 9, 2009, as S. 1796, the America’s Health Future Act.  The Senate Finance Committee version only authorized the establishment of Exchanges by a State and the availability of premium tax credits through Exchanges “established by the State”.

The explicit language from S. 1679 also was not included in the “federal fallback” provision of the Senate Amendment to H.R. 3590, adopted on December 24, 2009, and that became the Patient Protection and Affordable Care Act. Comparing these three prominent versions of the ACA considered during the legislative process demonstrates that the opportunity and need to expressly address the treatment of premium tax credits in Exchanges established by the State or by HHS was self-evident but was not acted upon by the Congress.

The Senate Amendment was the product of marathon “merger” meetings between the Senate Finance and HELP committees, the Senate Majority Leadership, and White House staff to reconcile the bills reported from each committee. See, McDonough, Inside National Health Reform (2011) at 89. Pertinent to King v. Burwell, the Senate Amendment was a deliberate “merger” of the two committee proposals consisting mostly of the Finance bill and adding the HELP federal fallback but without the premium credit tie-in language.

The issue in King v. Burwell initially is all about whether the Court can read into a law any statutory language that was earlier considered by the Congress but was not adopted in the subsequently enacted final version of that law. The Supreme Court has said in the past that there are few principles of statutory construction that are more compelling than the proposition that Congress does not intend to enact as statutory language provisions that it has earlier discarded in favor of other language. See Doe v. Chao, 540 U.S. 614, 622 (2004).

The question is not what Congress would have wanted but what Congress actually enacted.  The Court’s role is to interpret the statutory language of the law as it is enacted by the Congress and to presume that the legislature has said what it means and means what it says, and to not alter the text to satisfy a policy preference. For the ACA, if the language of S. 1679 was intended to be included, then the proper remedy is to seek amendment to the statute from the Legislative Branch. Congress had the language and knew what to say but did not say it.

Or, as the prosecuting attorney might say in the closing argument for a criminal trial, the Congress that enacted what became the ACA — before it lost a temporary “supermajority” in the Senate favoring its passage — had “the means, and the opportunity” to authorize tax credits in federal exchanges in December 2009, if it wanted to. By March 2010, it had a different “motive” to continue not to do so, when it needed to pass a law by any means necessary that became the final text of the ACA.

We report. The High Court will decide.

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