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“More than Just the ACA at Stake in King v. Burwell” by Erin Fuse Brown


FuseBrown_headshot-300x300Commentators have been weighing in since the Supreme Court decided it would hear King v. Burwell, the case challenging the ability of millions of Americans to receive subsidies to purchase health insurance on federally operated Exchanges under the ACA.  Debate swirls over whether a decision striking down these subsidies will gut the ACA or not, but at the very least a ruling in favor of the petitioners would have grave consequences for ACA the and the millions that currently receive these subsidies.

There is, however, more at stake in the King case than the ACA.  If the Court takes this opportunity to cut down the ACA, it does so at the cost of the principle of separation of powers and the Supreme Court’s institutional legitimacy and credibility.


The question in King will be resolved under the Chevron framework, which provides that if a statutory provision is ambiguous, then the court must defer to the agency’s interpretation, so long as it is permissible.  Reasonable, learned minds have been disagreeing on the meaning of the statutory provision. As Adrian Vermeule has pointed out, of the 9 federal judges that have reviewed this question, 6 have agreed with the government’s interpretation or concluded the statute is ambiguous, and 3 have concluded that the statute unambiguously precludes subsidies. This type of judicial disagreement is evidence itself of statutory ambiguity.

A conclusion that the statute unambiguously demonstrates Congressional intent to bar subsidies on federal Exchanges requires such a narrow, crabbed view of statutory interpretation that it would make step 1 of the Chevron analysis a cynical, political exercise.

Separation of Powers

The notion of “Chevron deference” is rooted in the principle of separation of powers. The Court accedes to the reasonable interpretation of the agency tasked by Congress to implement a statute consistent with Congress’ delegation of authority to the agency. Such judicial deference gives agencies primary responsibility for the policy judgments inherent in statutory interpretation and prevents unelected judges from infusing their political preferences into the policymaking process.

King is an exemplar of the separation of powers concerns in the Chevron formulation. The Court that wrote Chevron understood that the selection of the best interpretation of an ambiguous statutory provision is more a question of policy than law.  This is undoubtedly the case here: nearly 5 million individuals’ access to health insurance, the economic stability of the health insurance markets in 36 states, and the viability of the core purpose of this massive statutory overhaul of the U.S. health care system, all hang in the balance.  The Court should not be in the business of wading into such bald policymaking by second-guessing agency interpretations of ambiguous and complicated statutory provisions.

Legitimacy of the Court

It would be a paradigmatic form of judicial activism for Supreme Court to dismantle the core of a duly passed, constitutional statute by Congress. Such action would create the specter of a Supreme Court that engages in an elaborate game of “gotcha” with Congress, using the slightest textual inconsistencies as a sword to unwind entire statutory schemes. In so doing, the Court would send a dangerous message: Congress can make no error in drafting its laws or else a majority of Justices with a jaundiced eye toward the statutory policy will seize on the slightest textual inconsistency to bring the statute down.

King is a simple Chevron case requiring judicial restraint and deference. If it rules otherwise, the Court does harm not just to the ACA and the millions of Americans depending on the subsidies to obtain health coverage, but to the principles of separation of powers that counsel against judicial policymaking and the institutional legitimacy of the Supreme Court.

Erin C. Fuse Brown is an assistant professor with Georgia State University College of Law teaching health care law and administrative law.


2 thoughts on ““More than Just the ACA at Stake in King v. Burwell” by Erin Fuse Brown

  1. Professor Brown begins objectively and accurately states that Chevron is the test. And it is true there is a split in the Circuits which prompted the Court to accept Cert. From there, all I see is rhetoric. It is true that striking down the subsidy provision would financially gut the ACA and that losing subsidies would return many to the individual mandate without the tax benefits, but the legal analysis before the Court is not at all as she suggests.
    Is it not possible, in 2014, that the 6 who found the stature unambiguous were already practicing judicial activism? The legislative language does not, on its face, appear open to any meanings but one, and the legislative intent is on YouTube for all to hear, supporting the plain meaning.
    In any case, the Court’s duty is to make an independent evaluation of the terms of the law and, under Chevron, of the reasonableness of the regulation drawn on it. Brown appears to confuse legislative deference with regulatory deference. The Court is not there to help HHS fix legislative provisions that may not have accomplished the ends desired when the Congress said what they meant, in plain language.
    However noble the intentions behind the ACA, the law as drafted was a rushed attempt to change 1/6 of the economy that has had unintended consequences. The Constitutionally appropriate way to fix the mess, which a rejection will surely leave, is back in Congress.


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