King v. Burwell and the Triumph of Selective Contextualism

Cato Supreme Court Review (2014-2015 Forthcoming)

Case Legal Studies Research Paper No. 2015-17

44 Pages Posted: 15 Aug 2015 Last revised: 11 Sep 2015

Jonathan H. Adler

Case Western Reserve University School of Law; PERC - Property and Environment Research Center

Michael F. Cannon

Cato Institute

Date Written: August 13, 2015

Abstract

King v. Burwell presented the question of whether the Patient Protection and Affordable Care Act of 2010 (ACA) authorizes the Internal Revenue Service (IRS) to issue tax credits for the purchase of health insurance through Exchanges established by the federal government. The King plaintiffs alleged an IRS rule purporting to authorize tax credits in federal Exchanges was unlawful because the text of the ACA expressly authorizes tax credits only in Exchanges “established by the State.” The Supreme Court conceded the plain meaning of the operative text, and that Congress defined “State” to exclude the federal government. The Court nevertheless disagreed with the plaintiffs, explaining that “the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” The Court reached its conclusion by disregarding portions of the ACA’s text and considering only selected elements of the ACA’s structure, context, and purpose. The King majority’s selective contextualism embraced an unexpressed congressional “plan” at the expense of the plan Congress actually enacted.

Keywords: Affordable Care Act, Obamacare, King v. Burwell, health insurance, insurance exchanges, exchange tax credits, purposivism, contextualism

JEL Classification: K23, K34

Suggested Citation

Adler, Jonathan H. and Cannon, Michael F., King v. Burwell and the Triumph of Selective Contextualism (August 13, 2015). Cato Supreme Court Review (2014-2015 Forthcoming); Case Legal Studies Research Paper No. 2015-17. Available at SSRN: https://ssrn.com/abstract=2643713

Jonathan H. Adler (Contact Author)

Case Western Reserve University School of Law ( email )

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HOME PAGE: http://www.jhadler.net

PERC - Property and Environment Research Center

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Michael F. Cannon

Cato Institute ( email )

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HOME PAGE: http://www.cato.org/people/cannon.html

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