The Affordable Care Act: Five Questions with Gillian Metzger

Gillian Metzger (LAW’96) is the Stanley H. Fuld Professor of Law, and faculty director of the Law School’s Center for Constitutional Governance. An expert in administrative and constitutional law, with a specialization in federalism, she and several other professors wrote an amicus brief that says the principles of federalism support the tax subsidies at issue in the widely watched King v. Burwell case. Here, she answers five questions about the March 4 oral arguments before the U.S. Supreme Court.

Q. What is the essential question here?

This case is about statutory interpretation, it is not a constitutional challenge. It centers on whether a provision of the Affordable Care Act that details how tax subsidies are to be calculated also limits those subsidies so that they are not available for health insurance policies purchased on a health exchange run by the federal government.

Constitutional federalism principles are relevant. Under well-established doctrine, the Supreme Court will not interpret a federal statute to alter the usual federal-state balance unless it is certain that Congress intended to do so. It seems clear from the oral argument that the Justices–and in particular Justice Kennedy–take these federalism rules of statutory interpretation quite seriously.

Q. Your brief relies on the concept of Congressional intent behind the law. Could you explain the importance of that for the layperson?

Congressional intent comes in because, as mentioned above, under these federalism rules the courts require certainty before they will conclude that Congress intended to alter the usual federal-state balance. Prior case law also puts a big emphasis on states having notice of onerous conditions.

Reading the statute here as limiting subsidies to state exchanges, as the plaintiffs claim, would have disastrous consequences for the states with federal exchanges. Not only would their citizens lose millions in subsidies, but the individual insurance markets in those states will likely collapse because premiums will shoot up. The certainty needed to impose such a burden on the states is lacking. In fact, the reading of the statute that the challengers are asserting here would create a number of anomalies and inconsistencies in the statute. Moreover, the phrase that the challengers rely on is not where one would expect it to be, in the provision on state exchanges, but instead buried in a provision of the statute setting out a formula for calculating subsidies.

Q. How ground-breaking would it be if the Court overturned the law? Has the court been consistent in these interpretations of intent?

It the Court sides with the challenge here, it will overturn the government's regulation providing that subsidies are available at either a federal or a state exchange, but the Affordable Care Act itself would still stand.

But for the Court to do so, it would have to read the four words that the challenge rests on as so clear as to trump all the other conflicting text in the statute. It would have to also read those words out of context, despite longstanding precedent that a court needs to look at the whole statute. And it would have to ignore the well-established federalism rules of statutory interpretation. All of that would be very unusual.

Q. How important is it to the Supreme Court that there currently is no backup plan from either the President or Congress if the Affordable Care Act is invalidated.

The consequences of invalidation certainly have played into the atmospherics of this case. They also support the government's argument that it is highly unlikely that Congress, adopting the ACA in order to expand access to insurance, would have restricted subsidies in a way that would so limit individual's access to insurance. So yes, those consequences do matter.

On the other hand, those consequences can be forestalled by congressional action reversing a Supreme Court decision limiting the subsidies. And states could establish their own exchanges, although that would take time. At oral argument, Justice Alito suggested that if the Court agreed with the challengers and ruled against the government, it could stay its mandate to give time for a fix to be adopted–in essence, an equitable remedial solution by the Court to limit the disruption caused by its decision.

Q. Some media stories before oral argument suggested that the plaintiffs in the case don’t have standing. How likely is this to play into a resolution of this case? Is there any reason to think the Supreme Court would want to punt on this? Wouldn't that set up yet another challenge to the law for another reason?

Although standing came up at oral argument, few of the justices seemed interested in exploring the issue. It doesn't seem likely that the Court will punt the case on that issue.