King v. Burwell: The Supreme Court's Missed Opportunity to Cure What Ails Chevron

35 Pages·2016·0.66 MB·English

Journal of Legislation
Volume 42|Issue 1 Article 2
1-16-2016
King v. Burwell: The Supreme Court's Missed
Opportunity to Cure What Ails Chevron
Vanessa L. Johnson
Marisa Finley
J. James Rohack
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Vanessa L. Johnson, Marisa Finley & J. James Rohack,King v. Burwell: The Supreme Court's Missed Opportunity to Cure What Ails
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KING V. BURWELL:
THE SUPREME COURT’S MISSED OPPORTUNITY TO CURE
WHAT AILS CHEVRON
Vanessa L. Johnson*
Marisa Finley**
J. James Rohack***
The Patient Protection and Affordable Care Act PL 111-148 (ACA) and the
Health Care and Education Reconciliation Act of 2010 (HCERA) represent “the most
significant transformation of our health insurance market in more than 40 years . . .
At the health law’s core is a ‘three‐legged stool’ approach to reforming these markets:
new rules that prevent insurers from denying coverage or raising premiums based on
preexisting conditions, requirements that everyone buy insurance, and subsidies to
make that insurance affordable.”1 Considering health policy apart from its relation-
ship to tax policy is nearly impossible since “health policy cannot be separated from
the fact that government finances, essentially through taxes, many of the services or
programs health policy establishes.”2 In fact, the United States’ dependence on pri-
vate, employer-based health insurance is primarily a function of the tax exclusion for
health care that began with “a 1942 ruling by the War Labor Board that allowed em-
ployers to bypass wartime wage controls by providing fringe benefits to workers.”3
ACA not only maintains this system of tax-favored, employer-sponsored coverage,
but with respect to tax administration, ACA is also arguably the most significant at-
tempt ever to reform social welfare policy through the tax code.4 The sheer number

* Assistant Professor of Legal Studies, University of Houston – Clear Lake, supported by Courtney
Award in Health Law
** Vice President, Baylor Scott & White Center for Healthcare Policy
*** Courtney Chair in Medical Humanities, Chief Health Policy Officer, Senior Vice President and Direc-
tor, Baylor Scott & White Center for Healthcare Policy.
1. Jonathan Gruber, Health Care Reform Is a “Three Legged Stool”: The Costs of Partially Repealing
the Affordable
Care Act, CENTER FOR AMERICAN PROGRESS 2 (Aug. 2010), http://cdn.americanprogress.org/wp-content/up-
loads/issues/2010/08/pdf/repealing_reform.pdf.
2. BEAUFORT B. LONGEST, JR., HEALTH POLICYMAKING IN THE UNITED STATES 29 (Chicago: Health
Administration Press, 5th Ed. 2014).
3. Tom Miller, Kill the Tax Exclusion for Health Insurance, NATIONAL REVIEW ONLINE, Aug. 19, 2014,
at 1, available at http://www.nationalreview.com/article/385704/kill-tax-exclusion-health-insurance-tom-mil-
ler.
4. David Gamage, Perverse Incentives Arising from the Tax Provisions of Healthcare Reform, 65 TAX.
L. REV. 669, 670 (2012).
1
2 Journal of Legislation [Vol. 42:1
of ACA tax provisions (33) is quite remarkable.5 Furthermore, these tax-related pro-
visions of the ACA are expected to “create a new framework that will dramatically
alter the U.S. system for health care finance.”6
Codified at Section 36B of the Internal Revenue Code, the ACA tax provision
that has garnered the most attention is the one that subsidizes health insurance pre-
miums through a refundable premium assistance tax credit (PTC).7 It is one of two
companion provisions of the 2010 health care reform legislation that provides subsi-
dies (that began in 2014) for low- and moderate-income individuals and families pur-
chasing health insurance through state health insurance exchanges.8 An integral com-
ponent of the ‘three‐legged stool’ approach and the primary subsidy utilized to make
insurance affordable, premium assistance tax credits, at first glance, seem to be a
pretty straightforward concept.9 However, both complex and controversial, these
subsidies resulted in multiple legal challenges with inconsistent holdings based on
the application of a decades-old doctrine, the Chevron framework. The Chevron
framework is a two-step process that allows for an unacceptable level of subjectivity
by the Court. An extra step needs to be added to the framework to create a more
consistent application of the doctrine, which would also help minimize political in-
fluence at the judicial level. Consequently, on November 17, 2014, the Supreme
Court of the United States (SCOTUS) granted certiorari to review King v. Burwell,
759 F.3d. 358 (4th Cir. 2014), heard oral arguments on March 4, 2015, and issued its
ruling in favor of the Obama Administration on June 25, 2015.
For a second time, SCOTUS saved ACA. If the court had perpetuated the incon-
sistent applications of the Chevron framework and ruled along familiar ideological/
political lines in favor of the plaintiffs-appellants, the effects on healthcare reform
would have been devastating. The premium assistance tax credits are “important to
the overall structure of the law, because many middle-income Americans can’t afford
to pay the full price of insurance premiums.”10 In fact, in a report issued on June 18,
2014, the Department of Health and Human Services reported the following:11
Individuals who selected a Marketplace plan with a non-zero tax credit “have a
post-tax credit premium that is 76 percent less than the full premium, on average, as
a result of the tax credit—reducing their premium from $346 to $82 per month” (with

5. IRS, AFFORDABLE CARE ACT TAX PROVISIONS (2015), https://www.irs.gov/Affordable-Care-Act/Af-
fordable-Care-Act-Tax-Provisions.
6. David Gamage, Perverse Incentives Arising from the Tax Provisions of Healthcare Reform, 65 TAX.
L. REV. 669, 670 (2012).
7. Lawrence Zelenak, Choosing Between Tax and Nontax Delivery Mechanisms for Health Insurance
Subsidies, 65 Tax L. Rev. 723 (2012).
8. Id.; Patient Protection and Affordable Care Act, Pub. L. No. 111-148, §§ 1401-1402, 124 Stat. 119,
213-24 (2010); Health Care and Education Reconciliation Act, Pub. L. No. 111-152, § 1001, 124 Stat.
1029,1030-32 (2010) [hereinafter ACA].
9. Jonathan Gruber, Health Care Reform Is a “Three Legged Stool”: The Costs of Partially Repealing
the Affordable Care Act, CENTER FOR AMERICAN PROGRESS 2 (Aug. 2010), http://cdn.americanpro-
gress.org/wp-content/uploads/issues/2010/08/pdf/repealing_reform.pdf.
10. Margot Sanger-Katz, What’s at Stake in Supreme Court’s Latest Health Care Case, N.Y. TIMES, Nov.
7, 2014, available at http://www.nytimes.com/2014/11/08/upshot/whats-at-stake-in-supreme-courts-latest-
health-care-case.html.
11. Amy Burke et al., Premium Affordability, Competition, and Choice in the Health Insurance Market-
place, 2014, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES ASPE (June 18, 2014),
http://aspe.hhs.gov/sites/default/files/pdf/76896/2014MktPlacePremBrf.pdf.
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2016] Journal of Legislation 3
an average subsidy of $264 per month)12 and
69 percent of individuals selecting plans with tax credits “have premiums of $100
or less after tax credits—nearly half (46 percent) have premiums of $50 or less after
tax credits.”13
Consequently, a ruling in favor of the plaintiffs-appellants would have disal-
lowed subsidies for about six million people in 34 states with federally operated in-
surance exchanges and likely resulted in the lapse of many of these health insurance
policies.14 In fact, before the ruling, the Minority Staff of the Committee on Energy
and Commerce released a report entitled, District-by-District Impact of a Potential
Supreme Court Ruling against Affordable Care Act Federal Exchange Tax Credits,
which stated:
“The Kaiser Family Foundation estimates that if the Supreme Court rules against
the Administration, over 13 million Americans could lose tax credits to help pay for
insurance coverage by 2016. These tax credits will be worth an average of over
$4,800 annually . . . a total of approximately $65 billion in tax credits are at risk.”15
Furthermore, a ruling in favor of the plaintiffs-appellants, would have also ren-
dered the employer mandate unenforceable in federally facilitated exchange states
since “employers that fail to provide minimum essential coverage or fail to provide
affordable and adequate coverage are only subject to a tax penalty if one or more of
their employees receive premium tax credits for the purchase of a qualified health
plan through an exchange.”16 The individual mandate would have also been weak-
ened, “as many individuals who may owe a tax under the individual mandate are
individuals for whom coverage would be unaffordable—and who would thus be ex-
empt from the mandate—were it not for the assistance they will receive for purchas-
ing insurance through premium tax credits.”17 As a consequence, premiums in the
individual market would have likely risen “sharply in federally facilitated exchange
states in the event of a plaintiffs’ ultimate victory.”18 For example, as the King v.
Burwell opinion notes, studies predicted that premiums, both inside and outside of
the Exchanges, would increase by 35 to 47 percent and enrollment would decrease
by 69 to 70 percent.19 To summarize, although the ACA’s market reform provisions

12. Id.
13. Id.
14. Id.; Drew Altman, Facing the Political Fallout From a King v. Burwell Ruling, WALL ST. J.L. BLOG
(June 19, 2015), http://blogs.wsj.com/washwire/2015/06/19/facing-the-fallout-from-a-king-v-burwell-ruling.
15. Minority Staff, District-by-District Impact of a Potential Supreme Court Ruling Against Affordable
Care Act Federal Exchange Tax Credits, U.S. HOUSE OF REPRESENTATIVES COMMITTEE ON ENERGY AND COM-
MERCE (December 2014), https://wayback.archive-it.org/4949/20141223160731/http://democrats.ener-
gycommerce.house.gov/sites/default/files/documents/Fact-Sheet-District-By-District-King-vs-Burwell-Im-
pacts-2014-December.pdf.
16. Timothy Jost, Implementing Health Reform: Appellate Decisions Split on Tax Credits in ACA Federal
Exchange, HEALTH AFFAIRS BLOG (July 23, 2014), http://healthaffairs.org/blog/2014/07/23/implementing-
health-reform-appellate-decisions-split-on-tax-credits-in-aca-federal-exchange/.
17. Id.
18. Id.
19. King v. Burwell, 135 S. Ct. 2480, 2493 (2015), citing E. Saltzman & C. Eibner, The Effect of Elimi-
nating the Affordable Care Act’s Tax Credits in Federally Facilitated Marketplaces (215) and L. Blumberg, M.
Buettgens, & J. Holahan, The Implications of a Supreme Court Finding for the Plaintiff in King vs. Burwell:
8.2 Million More Uninsured and 35% Higher Premiums (2015).
4 Journal of Legislation [Vol. 42:1
would have remained in place, a ruling in favor of the plaintiffs-appellants and the
resulting combination of no tax credits and an ineffective coverage requirement
would have likely pushed some States’ individual insurance markets into a death spi-
ral.20
These potential negative effects clearly demonstrate that the legal question pre-
sented in King v. Burwell held economic and political significance. Consequently,
instead of applying the Chevron framework, as all the lower courts had done in the
related legal challenges, SCOTUS found that using this doctrine (which defers to the
administrative agency’s judgment when Congressional intent is not clear) was not
proper.21 The court explained that the ACA does not expressly delegate the authority
to interpret the statute to the Internal Revenue Service (IRS).22 Thus, SCOTUS found
that determining the correct reading of Section 36B was its responsibility and rea-
soned that “it is especially unlikely that Congress would have delegated this decision
to the IRS, which has no expertise in crafting health insurance policy.”23 Unfortu-
nately, however, the problem with this approach is that SCOTUS squandered an op-
portunity to address the flaws in Chevron that were clearly demonstrated by the in-
consistent application of the doctrine in the related cases in the lower courts.
Therefore, the goals of this article are to outline the construct of the ACA’s premium
assistance tax credits, to explore the legal controversies surrounding these subsidies,
to use the tax subsidies cases to demonstrate the flaws in the Chevron framework,
and to argue that the Supreme Court should have framed its King v. Burwell analysis
in a way that would have cured, rather than ignored, the ails of Chevron.
I. PREMIUM ASSISTANCE TAX CREDITS AND ADVANCED PREMIUM TAX CREDITS
Starting in 2014, PPACA and HCERA add to the Internal Revenue Code (IRC)
a refundable ‘premium assistance [tax] credit’24 to defray an “applicable tax-
payer[‘s]” outlays for individual market health care coverage purchased through a
state-run insurance exchange.”25 Premium assistance tax credits are provided to peo-
ple with projected household income between 100 percent (133 percent in states that
have chosen to expand their Medicaid programs as that expansion will cover those
up to 133 percent of the Federal Poverty Line (FPL) including childless adults) and

20. Jonathan Gruber, Health Care Reform Is a “Three Legged Stool”: The Costs of Partially Repealing
the Affordable Care Act, CENTER FOR AMERICAN PROGRESS 2 (Aug. 2010), http://cdn.americanpro-
gress.org/wp-content/uploads/issues/2010/08/pdf/repealing_reform.pdf; King v. Burwell, 135 S. Ct. 2480
(2015).
21. King v. Burwell, 135 S. Ct. 2480, 2483 (2015).
22. Id. at 2489.
23. Id. at 2483.
24. Edward A. Zelinsky, The Health-Related Tax Provisions of PPACA and HCERA: Contingent,
Complex, Incremental and Lacking Cost Controls, N.Y.U. REV. EMP. BENEFITS & EXEC. COMP. 5, 5-38 (2010),
http://ssrn.com/abstract=1633556 (summarizing the many tax provisions of the ACA); 26 U.S.C.A. § 36B (West
2011).
25. Edward A. Zelinsky, The Health-Related Tax Provisions of PPACA and HCERA: Contingent,
Complex, Incremental and Lacking Cost Controls, N.Y.U. REV. EMP. BENEFITS & EXEC. COMP. 5, 26 (2010),
http://ssrn.com/abstract=1633556 (summarizing the many tax provisions of the ACA).
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400 percent of FPL and who are not covered by Medicaid and/or eligible for “afford-
able”26 employer-sponsored health insurance, which provides “minimum value.”27
The primary “target population for the PTC is those with household incomes of more
than 133 percent but not more than 400 percent of the poverty line.”28 Within the
range of credit-eligible household incomes, the credit decreases as household income
increases so that the after-credit cost of basic health insurance (“the applicable second
lowest cost silver plan with respect to the taxpayer”29) will not exceed a specified
percentage of the taxpayer’s household income, “with the specified percentage in-
creasing as the household income (expressed as a percentage of the poverty line)
increases”.30 “For taxpayers with household incomes of up to 133% of the poverty
line, the credit will reduce the after-credit health insurance premium to 2% of house-
hold income . . . [and] At the other end of credit-eligible household income, for a
taxpayer with income of 300% to 400% of the poverty line, the after-credit premium
will be 9.5% of household income.”31 Because families that spend more than 10 per-
cent of their income on health care are considered to have high medical cost burdens,
the goal was to keep premiums below this 10 percent threshold.32 The amount of the
credit is determined on a monthly basis using the following four step process:33
1. The taxpayer identifies the “adjusted monthly premium”34 for the “applicable
second lowest cost silver plan. . . of the individual market in the rating area
in which the taxpayer resides.”35 The applicable silver plan may be a self-
only coverage plan for a single insured individual36 or a family plan.37
2. Multiply the taxpayer’s annual household income by an “applicable percent-
age” and divide the resulting product by twelve.38 The applicable percentage
is based on the following table:39

26. Employer-provided coverage is deemed affordable if the employee’s required contribution for the an-
nual premium is less than or equal to 9.5 percent of the employee’s household income. 26 U.S.C.A. §
36B(c)(2)(C)(i)-(iv) (West 2011). The 9.5 percent figure will be indexed to reflect the extent to which health
insurance premiums grow faster than do income and consumer prices.
27. An employer-provided health plan provides “minimum value” if “the plan’s share of the total allowed
costs of benefits provided under the plan is (at least) 60 percent of such costs.” 26 U.S.C.A. § 36B(c)(2)(C)(ii)
(West 2011); Lawrence Zelenak, Choosing Between Tax and Nontax Delivery Mechanisms for Health Insur-
ance
Subsidies, 65 Tax L. Rev. 723, 724 (2012).
28. Lawrence Zelenak, Choosing Between Tax and Nontax Delivery Mechanisms for Health Insurance
Subsidies, 65 Tax L. Rev. 723, 724 (2012).
29. I.R.C. § 36B(b)(2)(B)(i) (West 2015).
30. Zelenak, supra note 7, at 724-25,; I.R.C. § 36B(b)(3)(A) (West 2015).
31. Zelenak, supra note 7, at 724-25.
32. Peter J. Cunningham, The Share of People with High Medical Costs Increased Prior to Implementa-
tion of the Affordable Care Act, 34 HEALTH AFFAIRS, 117, 118 (2015).
33. Zelinsky, supra note 24, at 27-28.
34. I.R.C. § 36B(b)(2)(B)(i) (West 2015).
35. Id. § 36B(b)(3)(A); see also 42 U.S.C.A. § 18022(d)(1)(B) (West 2015).
36. I.R.C. § 36B(b)(3)(B)(ii)(I) (West 2015).
37. Id. § 36B(b)(3)(B)(ii)(II).
38. Id. § 36B(b)(2)(B)(ii).
39. Id. § 36B(b)(3)(A)(i).
6 Journal of Legislation [Vol. 42:1
Household Income The initial premium The final premium per-
(expressed as percent per-centage is centage is
of poverty line)
Up to 133% 2.00% 2.00%
133% up to 150% 3.00% 4.00%
150% up to 200% 4.00% 6.30%
200% up to 250% 6.30% 8.05%
250% up to 300% 8.05% 9.50%
300% up to 400% 9.50% 9.50%

For taxable years beginning in any calendar year after 2014, these “applica-
ble percentages” will be indexed depending upon the extent to which health
insurance premiums grow faster than income and consumer prices.40
3. Subtract from the “adjusted monthly premium”( determined in the first step)
the amount calculated in the second step.41
4. If the resulting difference is negative or zero, the taxpayer is not entitled to
the premium assistance tax credit, but if the resulting difference is positive,
the amount is then compared to the monthly premium the taxpayer actually
pays through the exchange.42 “The lesser of these figures is the amount of
the premium assistance tax credit to which the taxpayer is entitled for the
month,”43 and “the sum of these monthly amounts constitutes the refundable
tax credit the taxpayer may take for the year.”44
An eligible taxpayer is entitled to the credit only with respect to the months for
which he (or a family member) is covered by a qualified health plan, but he may
choose to have all or a portion of the PTC paid in advance to the issuer of the health
plan to reduce the monthly premiums.45 This is referred to as the ‘Advance Premium
Tax Credit’ (APTC).46 Individuals that take advantage of the APTCs must complete
IRS Form 8962 to reconcile the APTC paid and the PTC for which they were eligible
on their annual tax return.47 If the advance credit amount was less than the amount
of the credit to which the taxpayer is actually entitled, the taxpayer receives the re-
maining credit amount as tax refund.48 However, “if the advance payment amount
was greater than the amount of credit to which the taxpayer is actually entitled, the
general rule is that the taxpayer must repay the entire amount of the excess.”49 Rec-
ognizing that repayment could potentially impose a hardship for some taxpayers,

40. Id. § 36B(b)(3)(A)(ii)(I).
41. Id. § 36B(b)(2)(B).
42. Id. § 36B(b)(2)(A).
43. Zelinsky, supra note 24, at 27-8; see I.R.C. § 36B(b)(2) (West 2015).
44. Zelinsky, supra note 24, at 27-8; see I.R.C.. § 36B(b)(1) (West 2015).
45. Zelenak, supra note 7, at 727; I.R.C § 36B(b) (West 2015)..
46. Amy Burke, Arpit Misra & Steven Shiengold, Premium Affordability, Competition, and Choice in the
Health Ins. Marketplace, 2014, U.S. DEP’T OF HEALTH AND HUMAN SERVICES (June 18, 2014),
http://aspe.hhs.gov/HEALTH/REPORTS/2014/PREMIUMS/2014MKTPLACEPREMBRF.PDF.
47. Id.
48. Zelenak, supra note 7, at 727; see I.R.C. § 36B(f)(1) (West 2015).
49. Zelenak, supra note 7, at 727; see I.R.C. § 36B(f)(2)(A) (West 2015).
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Congress initially instituted a cap on the amount to be repaid in the case of taxpayers
whose actual income for the credit year was less than 400% of the poverty line ($400
in the case of family insurance coverage and $250 in the case of individual cover-
age).50 However, to offset the cost of other provisions contained in the amending
legislation, Congress has twice adjusted the cap to require greater reconciliation.51
Late in 2010, it replaced the $400 cap with a variable cap, ranging from $600 in the
case of taxpayers with household income of less than 200% of the poverty line to
$3500 in the case of taxpayers with household income of at least 450% but less than
500% of the poverty line. In April 2011, Congress changed the caps to $600 for a
taxpayer with household income of less than 200% of the poverty line, $1500 for a
taxpayer with household income of at least 200% but less than 300% of the poverty
line, $2500 for a taxpayer with household income of at least 300% but less than 400%
of the poverty line, and no cap for a taxpayer with household income at or above
400% of the poverty line.52 Therefore, “practical eligibility for and the amount of the
PTC are functions of both income for the official year of the credit and income for
one or both of the two preceding years. The relevance of income of both the current
year and an earlier year (or years) is explicit in the case of a taxpayer relieved of the
burden of full reconciliation by the cap of §36B(f).53
However, “[i]n the case of a taxpayer not entitled to advance payment of the
credit (based on income prior to the official credit year), §36B purports to base the
amount of the credit solely on the taxpayer’s income for the official credit year.”54
The premium tax credit program regulations are detailed and some of the issues
addressed are extremely complicated and very technical. Hence, this article will not
include a detailed discussion of all the regulations associated with the premium as-
sistance tax credits. However, the Internal Revenue Service (IRS) website provides
a great timeline of the release of the applicable regulations by the Department of
Treasury (Treasury) and IRS.55
II. THE LEGAL CONTROVERSIES
On November 7, 2014, The Supreme Court of the United States (SCOTUS) re-
leased the order granting review of King v. Burwell, 759 F.3d 358, 363 (4th Cir.
2014), which was one of several Administrative Procedure Act challenges to the pre-
mium assistance tax credit program. The other cases included Halbig v. Burwell from
the District of Columbia Circuit, Pruitt v. Burwell from the Tenth Circuit, and State
of Indiana v. IRS from the Southern District of Indiana. All the plaintiffs contended

50. Zelenak, supra note 7, at 727; see also I.R.C. § 36B (West 2015).
51. Zelenak, supra note 7, at 727.
52. Id.; see Medicare and Medicaid Extenders Act of 2010, Pub. L. No. 111-309, § 208(a), 124 Stat. 3285,
3291-92 (2010); Comprehensive 1099 Taxpayer Prot. and Repayment of Exch. Subsidy Overpayments Act of
2011, Pub. L. No. 112-9, § 4, 125 Stat. 36, 36-37 (2011).
53. Zelenak, supra note 7, at 727-8.
54. Id. at 728.
55. Affordable Care Act Tax Provisions, IRS.GOV, http://www.irs.gov/Affordable-Care-Act/Affordable-
Care-Act-Tax-Provisions.
8 Journal of Legislation [Vol. 42:1
that the Internal Revenue Service’s broad interpretation of §36B to authorize the sub-
sidy for insurance purchased on Exchanges established by the Federal government
(IRS Rule) was contrary to the language of the statute, which, they asserted, author-
ized tax credits only for individuals who purchase insurance on state-run Ex-
changes.56 Despite virtually identical claims, the rationale and rulings of the various
courts differed, yet, many were surprised that the Supreme Court granted certiorari.
As a general rule, in the absence of an active circuit split, there is no conflict to re-
solve to ensure the uniformity of federal law.57 Both Indiana v. IRS and Pruitt v.
Burwell are United States District Court cases. In Indiana v. IRS cross motions for
summary judgment were filed, while Pruitt v. Burwell was appealed to the Tenth
Circuit after The Eastern District Court in Oklahoma vacated the IRS rule. However,
further proceedings were stayed pending the Supreme Court’s decision in King v.
Burwell. The Halbig v. Burwell decision, which vacated the IRS rule, was a panel
decision, but an en banc rehearing of the case was scheduled on December 17, 2014.
Further proceedings were also stayed pending the Supreme Court’s decision in King
v. Burwell. Nevertheless, per Supreme Court Rule 10, King v. Burwell, “unquestion-
ably concerns an ‘important question of federal law,’ as the resolution of this case
could have a significant impact on the implementation of the PPACA, particularly in
the 36 states that have not established their own exchanges.”58 Furthermore, “an ad-
ditional reason to take the case now is that the litigation creates substantial uncer-
tainty about the operation of the law, and should the plaintiffs’ claims been upheld,
policymakers, insurance companies, and those who would otherwise be eligible for
subsidies will need time to figure out how to respond.”59
As previously mentioned, the rationale and rulings of the various courts differed
despite the fact the plaintiffs’ claims are virtually identical in all the cases. Addition-
ally, all the courts applied the framework from Chevron, U.S.A., Inc. v. National Re-
sources Defense Council, Inc., 467 U.S. 837 (1984) to analyze the legal merits of
each case, as outlined below.
Complaint: Indiana v. IRS
The State of Indiana and several Indiana school corporations and districts filed a
Complaint for Declaratory and Injunctive Relief and Judicial Estoppel. The suit is an
Administrative Procedure Act challenge to the IRS regulation implementing the Pa-
tient Protection and Affordable Care Act (ACA).60 The complaint states, “The
United States has expanded the class of beneficiaries entitled to federal insurance
subsidies by redefining the term ‘exchange’ in Section 1401(a) of the ACA to include

56. King v. Burwell, 759 F.3d 358, 363 (4th Cir. 2014); Halbig v. Burwell, 758 F.3d 390, 398 (D.C. Cir.
2014); State of Ind. v. Internal Revenue Serv., No. 1:13-CV-1612 (S.D. Ind. 2014); Pruitt v. Burwell, No. 14-
7080 (10th Cir. 2014).
57. Jonathan H. Adler, Will the Supreme Court grant certiorari in King v. Burwell?, THE WASHINGTON
POST, November 3, 2014, available at http://www.washingtonpost.com/news/volokh-conspir-
acy/wp/2014/11/03/will-the-supreme-court-grant-certiorari-in-king-v-burwell/.
58. Jonathan H. Adler, Why Did the Court Grant Cert in King v. Burwell?, THE WASHINGTON POST (Nov.
7, 2014), http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/11/07/why-did-the-court-grant-
cert-in-king-v-burwell/.
59. Id.
60. Complaint at 2, Indiana v. IRS, 38 F. Supp. 3d 1003 (S.D. Ind. 2014) (No. 1:13-cv-1612).
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both state-run insurance exchanges and federally-run exchanges”61 and that “this re-
definition causes injuries to States and their political subdivisions as sovereign poli-
cymakers and employers.”62 The complaint claims that because the Tenth Amend-
ment precludes Congress from being able to require States to set up their own
Exchanges, “instead it created a system designed to convince states to do so volun-
tarily.”63 Furthermore, the complaint elaborates that “in addition to providing funds
for start-up costs, Congress wrote into the ACA subsidies for citizens who purchased
health insurance on state-established Exchanges, but provided no similar benefits for
citizens who purchase insurance using federally-established Exchanges”64 and ex-
plains the congressional rationale, stating that “the availability of exclusive federal
subsidies to customers of state exchanges would prompt citizens to pressure state
officials to establish (and ultimately absorb the expense of operating) Insurance Ex-
changes.”65 Given Indiana’s decision not to establish a State Exchange, the com-
plaint argues that “the result should be that, commencing in 2014, Indiana citizens
purchasing coverage from a Federal Exchange would not receive subsidies for doing
so, with the consequence that Indiana employers (including the State and its political
subdivisions) who do not afford minimum essential coverage to all employees work-
ing 30 hours or more per week would not have to pay Employer Mandate penalties.”66
Consequently, the IRS rule “stating that citizens who purchase coverage on a Federal
Exchange are entitled to the same subsidies as citizens who purchase from a State
Exchange (“IRS Rule”)”67 “contravenes the text of the ACA, thwarts Indiana’s abil-
ity to execute State policy,”68 and “violates both the Administrative Procedure Act
and the Tenth Amendment.”69
Pruitt v. Burwell (formerly Pruitt v. Sebelius)70 Complaint
Interestingly, the original complaint that the ACA was an unconstitutional exer-
cise of Congress’s Commerce Clause and Necessary and Proper Clause powers was
filed back in 2011 before the Supreme Court issued its decision in Nat’l Fed’n of
Indep. Bus. v. Sebelius, 567 U.S._ (2012) (“NFIB”). Proceedings were stayed while
the SCOTUS decision was pending, but after NFIB resolved the commerce clause
and necessary proper clause issues, the State of Oklahoma and Scott Pruitt, in his
official capacity as Attorney General, amended the complaint to raise new claims.
The amended complaint asked for “declaratory and injunctive relief with respect to

61. Id. ¶ 4.
62. Id.
63. Id. ¶ 5.
64. Id.
65. Id.
66. Id. ¶ 6.
67. Id.
68. Id.
69. Id. ¶ 7.
70. The named defendant in these complaints against the U.S. Department of Health & Human Services
is the Secretary of Health and Human Services. When the complaint was originally filed, Kathleen Sebelius
held this office. After the resignation of Secretary Sebelius, Sylvia Mathews Burwell was nominated, con-
firmed, and then sworn into the role on June 9, 2014.