Kelly Kearney


King v. Burwell—the decision that sparked interpretive pandemonium surrounding the meaning of four simple words—symbolized that the United States Supreme Court, albeit the highest court in America, may have more power than originally thought or intended. At the heart of the King case was the issue of whether the Patient Protection and Affordable Care Act (“ACA”) authorized federal online insurance markets (i.e., Exchanges) to offer subsidized health insurance (“subsidies”) to individuals that resided in a state without a state-established Exchange. The ACA provides for these subsidies to be available through Exchanges “established by the State.” But the Internal Revenue Service (“IRS”) promulgated a rule after the enactment of the ACA that clarified that such subsidies would be available on all Exchanges, regardless of whether they were state or federally established. So, whose interpretation was correct? Normally, the options would be Congress—the drafters of the legislation—or the IRS—the agency to whose opinion could be deferred in the face of ambiguous statutory text. But King provides a new, third option: the Supreme Court’s own interpretation of the law. Thus, the Court granted subsidies for all—holding the statutory language, “established by the State,” to mean “and the federal government, too”— and simultaneously established the precedent that words might not have the plain meaning they facially appear to have.

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