{"id":213,"date":"2015-05-17T23:56:58","date_gmt":"2015-05-18T06:56:58","guid":{"rendered":"https:\/\/erisa-experts.com\/blog\/?p=213"},"modified":"2016-03-01T13:15:51","modified_gmt":"2016-03-01T21:15:51","slug":"predicting-the-outcome-of-the-latest-challenge-to-the-affordable-care-act","status":"publish","type":"post","link":"https:\/\/erisa-experts.com\/blog\/2015\/05\/17\/predicting-the-outcome-of-the-latest-challenge-to-the-affordable-care-act\/","title":{"rendered":"Predicting the Outcome of the Latest Challenge to the Affordable Care Act"},"content":{"rendered":"

By Joseph A. Garofolo<\/a><\/p>\n

Since there have already been a number of thoughtful posts regarding the proposed ERISA fiduciary regulation that was issued by the Department of Labor on April 14, 2015, this blog strays from that subject to make a few observations about King v. Burwell<\/em>\u2014the latest challenge to the Patient Protection and Affordable Care Act (the \u201cACA\u201d) pending before the Supreme Court.<\/p>\n

King<\/em> involves an interpretation of a section of the Internal Revenue Code (the \u201cCode\u201d) added by the ACA.\u00a0 Code \u00a7 36B addresses the availability of premium tax credits for low to moderate income purchasers of insurance through health care exchanges established under the ACA.<\/p>\n

Premium tax credits are made available for eligible taxpayers \u201cenrolled through an Exchange established by the State under [section] 1311 [of the ACA].\u201d\u00a0 26 U.S.C. \u00a7 36B(b)(2)(A).\u00a0 Exchanges under the ACA were to be established pursuant to one of three methods: i) by the state pursuant to ACA \u00a7 1311; ii) by the federal government and state partnering pursuant to ACA \u00a7 1321; and iii) by the federal government pursuant to ACA \u00a7 1321.\u00a0 In 2012, the Internal Revenue Service (the \u201cIRS\u201d) promulgated a regulation that interpreted the relevant language of Code \u00a7 36B to include those \u201cenrolled in one or more qualified health plans through an exchange,\u201d meaning that the tax credits\u00a0would be\u00a0available to\u00a0eligible taxpayers regardless of how\u00a0an exchange was established in a particular state.\u00a0 Thereafter, 34 states declined to establish exchanges and, as contemplated by the ACA, the Department of Health and Human Services\u00a0set up\u00a0exchanges in those states.<\/p>\n

The question before the Supreme Court is whether the IRS\u2019 interpretation is a permissible construction of Code \u00a7 36B.\u00a0 An agency cannot interpret a statute\u00a0contrary to the \u201cunambiguously expressed intent of Congress.\u201d\u00a0 Chevron U.S.A. Inc. <\/em>v. Natural Resources Defense Council, Inc.<\/em>, 467 U.S. 837, 843 (1984).<\/p>\n

Judging by the questions at oral argument, Justices Breyer, Ginsburg, Kagan, and Sotomayor appear to be in favor of upholding the IRS\u2019 interpretation as a permissible\u00a0construction of Code \u00a7 36B while Justices Alito and Scalia appear to be in the opposite camp.\u00a0 Thus, the count appears to be four to three without a clear indication of where Chief Justice Roberts or Justice Kennedy will come out\u2014this assumes that Justice Thomas is with the latter group since, as usual, he did not ask any questions at oral argument.<\/p>\n

Of course, it is a dangerous exercise to attempt to predict the outcome of a case based on the questions asked by the Justices.\u00a0 But, interestingly, Professor Ed Lee of ITT Chicago-Kent College of Law has applied a method of predicting the outcome of Supreme Court cases to King <\/em>based on exactly that.\u00a0 Simply put, \u201cthe party that receives the most questions from the Justices during oral argument is more likely to lose.\u201d\u00a0 Edward Lee, Ed Lee: Predicting the Winners<\/em>, ITT Chicago-Kent College of Law SCOTUS Now, http:\/\/blogs.kentlaw.iit.edu\/iscotus\/lee-predicting-winners\/<\/a>.\u00a0 Professor Lee credits Judge Richard Posner of the Seventh Circuit and Professors Lee Epstein of Washington University and William Landes of the University of Chicago Law School with having performed a statistical analysis of this method.\u00a0 See<\/em>\u00a0Lee Epstein, William M. Landes, & Richard A. Posner,\u00a0Inferring the Winning Party in the Supreme Court from the Pattern of Questioning at Oral Argument<\/em><\/a>, 39 J. Legal Stud. 433 (2010).<\/p>\n

According to Professor Lee, based on this method, King<\/em> could go either way.\u00a0 However, he predicts that the challengers of the IRS\u2019 interpretation will prevail.\u00a0 Edward Lee, Affordable Care Act, OT 2014, Predicting the Winners, Predicting the Winner in King v. Burwell\u2014Will Obamacare Stand?<\/em>, ITT Chicago-Kent College of Law SCOTUS Now, March 4, 2015, http:\/\/blogs.kentlaw.iit.edu\/iscotus\/predicting-winner-king-v-burwell\/<\/a>.\u00a0 With regard to Justice Kennedy, Professor Lee writes the following: \u201c[I]n his questions, Kennedy floated a theory of constitutional doubt that would, if applied, favor the Solicitor General. \u00a0But if I stick to the question count method, Kennedy\u2019s question count favors the Petitioner.\u201d<\/p>\n

A decision in King<\/em> is expected in the next few months so we shall soon find out.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Joseph A. Garofolo Since there have already been a number of thoughtful posts regarding the proposed ERISA fiduciary regulation that was issued by the Department of Labor on April 14, 2015, this blog strays from that subject to make a few observations about King v. Burwell\u2014the latest challenge to the Patient Protection and Affordable … <\/a><\/span><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[16,9],"tags":[],"class_list":{"0":"entry","1":"post","2":"publish","3":"author-jgarofolo","4":"post-213","6":"format-standard","7":"category-health-plans","8":"category-supreme-court-decisions"},"_links":{"self":[{"href":"https:\/\/erisa-experts.com\/blog\/wp-json\/wp\/v2\/posts\/213","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/erisa-experts.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/erisa-experts.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/erisa-experts.com\/blog\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/erisa-experts.com\/blog\/wp-json\/wp\/v2\/comments?post=213"}],"version-history":[{"count":17,"href":"https:\/\/erisa-experts.com\/blog\/wp-json\/wp\/v2\/posts\/213\/revisions"}],"predecessor-version":[{"id":248,"href":"https:\/\/erisa-experts.com\/blog\/wp-json\/wp\/v2\/posts\/213\/revisions\/248"}],"wp:attachment":[{"href":"https:\/\/erisa-experts.com\/blog\/wp-json\/wp\/v2\/media?parent=213"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/erisa-experts.com\/blog\/wp-json\/wp\/v2\/categories?post=213"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/erisa-experts.com\/blog\/wp-json\/wp\/v2\/tags?post=213"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}