King v Burwell

Nancy Pelosi says the Affordable Care Act is "ironclad constitutionally".  I'm not arguing about the policy impact (oh no 8 billion people are going to lose coverage), or about whether the judicial activists on the Supreme Court who embody the "living constitution" will find a 5th vote to uphold it.  Or whether the IRS has the authority under the Chevron doctrine to interpret it. What I want to know is what would a literal reading of the statute reveal.

The statute is at https://democrats.senate.gov/pdfs/reform/patient-protection-affordable-care-act-as-passed.pdf.

It's 906 pages long and I haven't read it.  I'm just going to quote a few key sections.

Section 1311(a) reads :"ASSISTANCE TO STATES TO ESTABLISH AMERICAN HEALTH
BENEFIT EXCHANGES".
Section 1321(c) reads: "FAILURE TO ESTABLISH EXCHANGE OR IMPLEMENT REQUIREMENTS.— (1) IN GENERAL.—If— (A) a State is not an electing State under subsection (b); or (B) the Secretary determines, on or before January 1, 2013, that an electing State— (i) will not have any required Exchange operational by January 1, 2014; or (ii) has not taken the actions the Secretary determines necessary to implement— (I) the other requirements set forth in the standards under subsection (a); or (II) the requirements set forth in subtitles A and C and the amendments made by such subtitles; the Secretary shall (directly or through agreement with a not for- profit entity) establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements."

Section 1401 revises the Internal Code in Section 36B to allow for subsidies for premiums paid which cover "the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of
the taxpayer and which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act,"

The magic phrase: "an Exchange established by the State under 1311" occurs only once in the document (in the section just quoted).
Other similar phrases:
"an Exchange established by the State under section 1311" (8 times)
"an Exchange established by the State under this section"
"an Exchange established under this Act (or an amendment made by this Act)"
"an Exchange established under the Patient Protection and Affordable Care Act"
"an Exchange established under section 1311 of the Patient Protection and Affordable Care Act"
"an Exchange established under section 1311 of such Act"
"an Exchange established under section 1311."
"an Exchange established under this subtitle"
"an exchange established by a State under section 1311 of the Patient Protection and Affordable Care Act"
"In establishing an Exchange under this section"
"An Exchange shall establish a program"
"An Exchange may not establish rules"
"operate an Exchange under this section"
"through the Exchanges established under this title (other than Exchanges in States that elect to opt out".
"the Exchanges established under this title"
"the Exchanges established under section 1311 of the Patient Protection and Affordable Care Act"

In my brief reading of the act, there is only one type of Exchange referred to.  An exchange is distinguished from insurance purchased elsewhere ("health insurance coverage offered through an Exchange and outside of an Exchange"), and from other government programs ("streamlined procedures for enrollment through an Exchange, Medicaid, and CHIP").  I think it is very poorly worded.  There should be the definition of an Exchange given one place in the act. A poorly drafted document should be construed against the drafter.

I reluctantly come to the conclusion that there is only one type of Exchange mentioned, which is one established by the State, or an alternative one established by the Secretary.  My conclusion is not based on bias, policy, or a prediction of what the Supreme Court will do. I certainly don't think it is ironclad.  And this has nothing to do with constitutionality, which is based on a very strained interpretation by Justice Roberts of the taxing powers of Congress.