Talk:King v. Burwell

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"outside the text of the statute"
The following paragraph from the section on "Legislative intent" is false as written, and should be modified or, better, deleted. Lyle Denniston wrote that the parties' positions offer differing views on how to interpret legislation: while the plaintiffs argue that only the words of a statute can govern its interpretation, the government argues that courts can look outside the text of a statute to consider policy objectives Congress intended to achieve. Denniston actually says this: The challengers take the “literal interpretation” approach, although they also have policy reasons for reading the ACA as they do. The Obama administration takes the “broader purpose” approach, contending that Congress would not have set up the insurance program on a basis that is as limited as the challengers contend. Neither Lyle Denniston nor, to my knowledge, anyone else, has ever claimed that the government argument differs from petitioners in how they treat evidence from "outside the text of a statute". Both parties have argued that their readings are compelled by the text and structure of the ACA, and that the opposition readings are impermissable. It is true that the government brief emphasizes the broader purpose of the law, but the evidence they adduce in their primary argument is entirely from the text of the ACA itself. The government references legislative history only to address claims made by petitioners. KennethJohnKelly (talk) 06:03, 2 May 2015 (UTC)

Edit to "Text" section
I'd like for now to propose edits to the "Text of the Law ..." section. I'm a co-author, with Tim Jost, of a law review article on anomalies arising from the subsidy-attackers' view. (A link to which is part of what I propose, as an abbreviated way to cite the anomalies and their basis.

Currently the statutory part of "Text" is obviously just a beginning, and if a new reader tries to begin in 36B s/he has to backtrack to the material that forms the Exchanges and endows them with their characteristics. (I mean the part from the beginning, down thru the words "and Affordable Care Act" and current note number 17.) The regulatory two quotes and paragraphs that follow and currently end "Text" are roughly okay, with a little fix we could get to later. They would stay in (per my proposal) at the end of "Text."

As you'll see I suggest giving the readers a American Bar Assn resource to get all the USSC briefs, though I worry whether that site will last past this summer. The previous edit-proposer made good use of the Govt's brief for the border-crossing-employee anomaly. (Which didn't make it into Jost's and my article, if I recall.) A forceful statement of that anomaly is also in the amicus brief by Ralat-Albernas and other SEIU people, at 17. Justice Breyer liked that anomaly during oral argument, too. But that's one wrinkle among very many for one day improving the Arguments sections. (?)

Before setting out my proposal, I was glad to see the previous two edits were made and put in, re the Tim Jost and Lyle Denniston quotes. But while the Denniston sentence now accurately says what he wrote in that one piece, what Denniston said is still highly debatable. The US Govt, like most subsidy defenders, have "broad purpose" arguments also, they assert that subsidy-eligible consumers win on "plain meaning" in the first place. (Or "literal interpretation," Denniston's term.) This is one example of needing some subsidy-defense balance. And much more work could be done on the sections about the arguments. But for now, here's the proposed statutory "Text" part, to replace what's there:



The subsidy (or, premium tax credit) program is part of the new system of “Exchanges.” The question in the attack on the subsidies involves the legal characteristics or powers of Exchanges, and the ways in which they might be created for different States by the State government, Federal government (or both).

Title 42 of U.S. Code section 18031(b)(1) reads:

Each State shall, not later than January 1, 2014, establish an American Health Benefit Exchange (referred to in this title as an “Exchange”) for the State that –

(A) facilitates the purchase of qualified health plans;

(B) provides for the establishment of a Small Business Health Options Program (in this title referred to as a “SHOP Exchange”) that is designed to assist qualified employers in the State who are small employers in facilitating the enrollment of their employees in qualified health plans offered in the small group market in the State; and (C) meets the requirements of subsection (d).

This provision both describes the legal creation of an Exchange by a State, and gives a definition of the word “Exchange” at least where that word appears in Title I of the ACA (“this title”). The only person or political body mentioned, in so many words, in this section 18031 as establishing an Exchange is a State. The section also gives a lengthy description of functions an entity must do, and characteristics it must have, in order to be an “Exchange.” This section 18031 is the same as “section 1311 of the ACA,” which is the reference for it used in other important sections of the ACA.

The word “Exchange” is also defined, at least where that word appears in Title I, in Title 42 of U.S. Code section 300gg-91(d)(21):

The term "Exchange" means an American Health Benefit Exchange established under section 18031 of [Title 42 of U.S. Code].

See Title 42 of U.S. Code section 18111 for the step that this definitional statement applies to all of ACA Title I.

The authority for the Federal government to create an Exchange in a State whose government does not actively do so is in Title 42 of U.S. Code section 18041, which is the same as “section 1321 of the ACA.”    Subsection (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.

The references to the “election” in subsection (b) and various “requirements” in subsection (a) could also be studied as important to detailed analyses. The language “establish and operate such Exchange” is the core of the Federal authority to create what became known as an “FFE” (Federally facilitated Exchange: or often “Federally facilitated Marketplace” due to the Administration substituting “Marketplace” for “Exchange” in its own literature). This section 18041 (ACA, section 1321) is part of ACA Title I, so the definitions quoted earlier of the word “Exchange,” are in effect.

Then see also subparagraph (C) of section 18031(b)(1) quoted earlier, where part of the description of an “Exchange” is that it “meets the requirements of subsection (d).” Within subsection (d), paragraph (1) reads:

An Exchange shall be a governmental agency or nonprofit entity that is established by a State.

This might be taken as another confirmation that the word “Exchange,” by definition, always means an entity that is established by a State.

The section of the ACA on the premium tax credits is placed in the Internal Revenue Code (Title 26 of U.S. Code) in section 36B. In two places the phrase “established by the State under section 1311 of the [ACA]” follows the word “Exchange.” One is in the definition of the technical term “coverage month.”  The determination of whether a taxpayer and his/her household gain the credit is done one calendar month at a time. For each month, first it has to be a “coverage month” for the household. Subsection (c)(2)(A)(i) reads: The term "coverage month" means, with respect to an applicable taxpayer, any month if -

(i) as of the first day of such month the taxpayer, the taxpayer's spouse, or any dependent of the taxpayer is covered by a qualified health plan described in subsection         (b)(2)(A) that was enrolled in through an Exchange established by the State under section 1311 of the [ACA].

Next, the determination of whether a credit is gained, and how much, is made under subsection (b). It is the lesser of two amounts. The first one is the amount the household has actually paid in premiums to enroll in health plans (which might be more than one plan for various household members). Subsection (b)(2)(A) describes that amount as follows:

the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State 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 [ACA].

The attackers’ case is based on the inclusion of that phrase (“established by the State under section 1311”) in the above provisions. Sometimes attackers claim that the repetition of the phrase helps their cause. But defenders of the subsidies could point out that the double usage would be redundant and this creates problems for the attack.

Other passages from the text of the ACA are relevant to the arguments by defenders of the subsidies that the attackers’ assertions create anomalies throughout the ACA. Those assertions include the root claim that only actual “establishment” by a State government counts as “establish[ment] by the State” under the ACA, and the resulting claim that the residents of entire States are ineligible for the subsidies, due to lack of an actually State-government-established Exchange. For example, in the Federal Government’s Supreme Court brief, see pp. 27 – 32 and 51 – 54. [first note and link below] It is not practical to quote the texts for all the anomalies that subsidy defenders have developed. See a law review article compiling about 50 possible anomalies. [second note and link]

However, the texts for two of the anomalies that defenders might claim to have the greatest weight are set out as examples. Both depend on the attackers’ assertion that a State establishes an Exchange only when that State’s government, actually and by itself, creates the Exchange:

The “Qualified Individual” Issue. The issue is that if the attackers’ demand for actual State-government-establishment is valid, then — in States that do not meet that restriction — there are no residents who could buy health insurance through the Exchange at all (apart from whether they could receive a premium subsidy):

Title 42 of U.S. Code section 18031(d)(2)(A) reads:

(2) Offering of coverage

(A) In general An Exchange shall make available qualified health plans to qualified individuals and qualified employers.

Title 42 of U.S. Code section 18032(a)(1) reads:

(1) Qualified individuals A qualified individual may enroll in any qualified health plan available to such individual and for which such individual is eligible.

The definition of “qualified individual” is given in Title 42 of U.S. Code section 18032(f)(1)(A), which reads:

(1) Qualified individuals In this title [i.e. Title I of the ACA]:

(A) In general The term “qualified individual” means, with respect to an Exchange, an individual who—

(i) is seeking to enroll in a qualified health plan in the individual market offered through the Exchange; and

(ii) resides in the State that established the Exchange.

The Issue of Terminating the State’s Medicaid Program. The issue is that if the attackers’ demand for actual State-government-establishment is valid, then — in States where no such Exchange exists — it is impossible for the State government to comply with a certain enrollment requirement, and therefore its Federal-State Medicaid program could not lawfully continue.

Title 42 of U.S. Code section 1396w-3(a) reads:

(a) Condition for participation in Medicaid As a condition of the State plan under this subchapter and receipt of any Federal financial assistance under section 1396b(a) of this title for calendar quarters beginning after January 1, 2014, a State shall ensure that the requirements of subsection (b) is met.

Then subsection (b)(1)(C) of that same section reads: A State shall establish procedures for— … (C) ensuring that individuals who apply for but are determined to be ineligible for medical assistance under the State plan or a waiver or ineligible for child health assistance under the State child health plan under subchapter XXI, are screened for eligibility for enrollment in qualified health plans offered through such an Exchange [that is, an Exchange established by the State under section 18031 of Title 42, which is the last mention of an Exchange, in subparagraph (B), and is therefore referred to by “such an Exchange”] and, if applicable, premium assistance for the purchase of a qualified health plan under section 36B of the Internal Revenue Code of 1986 (and, if applicable, advance payment of such assistance under section 18082 of this title), and, if eligible, enrolled in such a plan without having to submit an additional or separate application, and that such individuals receive information regarding reduced cost-sharing for eligible individuals under section 18071 of this title, and any other assistance or subsidies available for coverage obtained through the Exchange; …

THE NOTES: The Supreme Court briefs are currently available here: http://www.americanbar.org/publications/preview_home/14-1114.html. The Federal Government’s is under Merits Briefs, and titled Brief for Respondent Sylvia Burwell, Secretary of Health and Human Services.

Timothy S. Jost and James Engstrand, Anomalies in the Affordable Care Act that Arise from Reading the Phrase “Exchange Established by the State” Out of Context, 23 U. Miami Bus. L. Rev. 249 (2015), available at http://repository.law.miami.edu/cgi/viewcontent.cgi?article=1256&context=umblr. JamesEngstrand (talk) 18:42, 7 May 2015 (UTC)

Use of the words "attacker" and "defender" violates WP:NPOV but thank you for your suggestions, I'm sure some of this can be incorporated. Gaijin42 (talk) 18:47, 7 May 2015 (UTC)

exchange set up under section 1321
This sentence from "Text of the law and regulation" is false, and has other problems.

"As implemented by the IRS, ACA regulations use a more broad definition encompassing both the state exchanges and the federal exchanges set up under section 1321"

1) "Exchange" is a defined term in the ACA, and should always be capitalized

2) All Exchanges are "State Exchanges". The relevant distinction for King concerns who established the Exchange.

3) There is no such thing as an Exchange "established under section 1321". All Exchanges, by definition, are established under section 1311.

ACA s1583(b)(2) "—The term ‘Exchange’ means an American Health Benefit Exchange established under section 1311 of the Patient Protection and Affordable Care Act.’" kjkelly (talk) 21:26, 27 May 2015 (UTC)


 * Reading of the WP:PRIMARY is WP:OR. The source used is very explicit. Maybe they are wrong, but we still follow the source. Also, I fear you may be using an interpretation of the law that presumes a particular answer to the dispute at hand in this lawsuit. In any case if you think the source is wrong, find a better one. From the source : "These different types of exchanges were set up by different parts of the health law. But the part of the Affordable Care Act that calculates the subsidies specifies that those subsidies are available to people "enrolled in through an Exchange established by the State under 1311" — the section that sets up state-based exchanges. It does not reference section 1321, which sets up the federal and partnership marketplaces." Gaijin42 (talk) 21:34, 27 May 2015 (UTC)

Quotes and cites to syllabus
All of these need to be replaced with cites to and quotes from the Court's opinion itself, as I have done here in the intro. As the standard header on all opinions of the court explains, "The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader." By all means, read the syllabus for yourself to get a good summary of the opinion, but it's completely inappropriate to cite to it as if it were the law or what the Court said. We know exactly what the Court said because we have access to its opinion. postdlf (talk) 17:25, 21 July 2015 (UTC)
 * One could argue that the Syllabus is a WP:SECONDARY source, which Wikipedia prefers, "to avoid novel interpretations of primary sources." The Reporter of Decisions is a respected, neutral voice that summarizes the often lengthy arguments in the Courts decision and is therefore a useful and appropriate source for our articles. I'm not saying one should never cite the opinion itself, but the syllabus is a good guide to which points to mention in our articles. Of course it does not cover the dissents.--agr (talk) 20:59, 21 July 2015 (UTC)
 * Whether the syllabus is ever appropriate to treat as a secondary source is not necessary to get into here, as verbatim quotes were being given from the syllabus, and were even misattributed as coming from the Court's opinion. The language tracked closely of course, but there's never a reason to quote the syllabus instead of the actual opinion. postdlf (talk) 21:25, 21 July 2015 (UTC)
 * No, the syllabus is not a secondary source, it is issued by the Reporter in the name and on behalf of the Court. GregJackP   Boomer!   21:51, 21 July 2015 (UTC)
 * How does that make it less reliable? It's not the primary source, that's the decision itself.--agr (talk) 13:16, 23 July 2015 (UTC)
 * I think he's saying it's just a different or supplemental primary source rather than a secondary source. The distinction is in any event academic here because it should never be used in the way it was in this article. postdlf (talk) 13:57, 23 July 2015 (UTC)
 * I never commented on the reliablity of the syllabus, I merely stated that it was a primary source, issued on behalf of the Court that issued the opinion. The Reporter of Decisions works for the Court and the syllabus is written differently dependent on which justice wrote the majority opinion. For example the current reporter has commented that J. Scalia likes a very short syllabus, J. Ginsburg not so much. That implies that the justices have an input into the syllabus, which doesn't affect the reliability, but it means that the syllabus is not independent and is therefore still a primary source. GregJackP   Boomer!   15:56, 23 July 2015 (UTC)

The text of the syllabus is a secondary source with respect to the opinion of the Court. The Syllabus and the Opinion are two different sources (although physically printed in the same document). If you are attempting to report on what the Court's opinion was, and you are using the text of the syllabus as your source for that, then the syllabus is a secondary source for that purpose.

By contrast, if you are saying that the "syllabus says this" (without regard to the text of the opinion of the Court itself) and you use the text of the syllabus as your source, then the text of the syllabus is a primary source for that purpose.

Similarly, if you are writing about something in the Bible, and if a court opinion happens to include a quote from the Bible that you like, and if for some reason you want to use the court opinion as your source for what is in the Bible (rather than using the actual Bible as your source, perhaps because you don't have a Bible handy at the moment), the court opinion would be a secondary source for what is in the Bible.

Whether a given source is primary or secondary depends on the context in which it is being used. A source can be primary in one situation, but secondary in another. Famspear (talk) 17:50, 23 July 2015 (UTC)


 * No, just as one part of the Bible is not a secondary source for another part of the Bible. The syllabus is a primary source. GregJackP   Boomer!   00:39, 24 July 2015 (UTC)

No, the Syllabus is a secondary source for what is in the court's opinion. The Syllabus is a primary source for what is written in the Syllabus. Go back and read what I wrote. Famspear (talk) 00:47, 24 July 2015 (UTC)

Dear GregJackP: I take it you're not familiar with the Detroit Lumber Doctrine. This is first semester law school stuff. For purposes of legal research, the syllabus printed at the head of a U.S. Supreme Court opinion is not primary authority for what is in the opinion itself.

The same concept holds true for the use of such a syllabus in Wikipedia: If you're trying to explain what the Court ruled, or what's in the Court's opinion, then using the syllabus for that means you are using it as a secondary source, not a primary source. Famspear (talk) 01:00, 24 July 2015 (UTC)

For those readers who are not lawyers, here is an excerpt from one of my law books from my very first semester in law school:


 * Cases often begin with a brief synopsis of the facts and issues considered in a case. The synopsis may be written by a designee of the court, such as the Reporter of Decisions. It is called a syllabus. While a syllabus may assist your research by providing a brief overview of a case, it cannot be used as authority in place of the court's decision. Often the syllabus is not entirely reflective of the court's opinion, and an attorney who relies on a syllabus may be surprised to find that his or her case is based on an incorrect interpretation of the law. In United States v. Detroit [Timber &] Lumber Co., 200 U.S. 321, 337 (1906), an attorney claimed a point of law was settled, relying on a United States Supreme Court syllabus. However, the syllabus misinterpreted the point of law, and the Supreme Court explained that a syllabus is simply a reporter's interpretation of the case and is published for an attorney's convenience. The United States Supreme Court cites Detroit Lumber as authority in the warning it prints at the top of its opinions that contain a syllabus: "The syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of decisions for the convenience of the reader."

--from Kunz, Erlinder, Downs, Greene, Bateson & Millard, The Process of Legal Research, p. 61, Little, Brown and Company (1986).

Except perhaps in Ohio -- where you are citing an Ohio court case (where citing a syllabus used to be OK, and maybe still is) -- a lawyer who is foolish enough to cite a syllabus as a substitute for citing the actual court opinion, risks having other lawyers laugh at him. In legal research, citing a syllabus would be like citing a digest or headnote, instead of citing the opinion itself. It's just not done (except in a few places like Ohio).

Here is the warning printed above the syllabus for King v. Burwell:


 * NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337...

Yours, Famspear (talk) 01:25, 24 July 2015 (UTC)

By the way: As late as the mid-twentieth century, U.S. Supreme Court decisions were still being published in some cases with headnotes, syllabi, or summaries of the parties' arguments in such a way that a non-lawyer would not be able to easily figure out what part of the material was the syllabus, etc., and what part was the text of the Court's opinion. A famous example is the case of Lucas v. Earl, 281 U.S. 111 (1930), a leading U.S. Supreme Court case on the subject of the U.S. federal income tax. Amateurs have repeatedly made the mistake of incorrectly assuming that certain lengthy introductory verbiage printed above the Supreme Court's opinion (in certain re-prints of the case) was part of the Court's opinion. The verbiage was taken from various pages of the taxpayer's brief in the case -- and the taxpayer LOST the case. The Court had actually ruled the OPPOSITE of what was stated in the introductory verbiage.

Again, the only time a syllabus would be considered a primary source would be where (for some reason) you were trying to say "this is what the syllabus says". A syllabus cannot be a primary authority (in legal parlance) for what is stated in the opinion of the Court, and a syllabus cannot be a primary source (in Wikipedia parlance) for what is stated in the opinion of the Court. Famspear (talk) 01:50, 24 July 2015 (UTC)


 * I'm quite familiar with Detroit Lumber and it being the reason for the disclaimer on every syllabus since its mistake was discovered. So what? It doesn't change the fact that the Reporter works for the Court, issues the opinion for the Court, and is hired and fired by the Court. It's a primary source. As to the rest? TLDR. GregJackP   Boomer!   03:04, 24 July 2015 (UTC)


 * Dear GregJackP: OK, that's it? That's your answer? TLDR, or "too long didn't read"? Well, I counter-argue that the fact that the Reporter works for the Court, etc., does not make the syllabus written by the Reporter a primary source for what is in the Court's opinion. Again, the reason that the Syllabus is prefaced with the Detroit Lumber warning is to help people avoid the mistake of using the Syllabus as a substitute for what is in the actual Opinion of the Court. Famspear (talk) 11:58, 24 July 2015 (UTC)

I think this discussion has become a bit confused. In the context of citing court rulings in legal briefs a primary source is generally preferred over a secondary source. In the context of writing a Wikipedia article the opposite is true. The relevant instructions are not the disclaimer accompanying each Supreme Court Syllabus, but the Wikipedia policy WP:PRIMARY. The reasoning is that use of primary sources inevitably involves picking and choosing and we prefer that picking and choosing be done by someone with appropriate qualifications, not just a Wikipedia editor. The policy says "Any interpretation of primary source material requires a reliable secondary source for that interpretation." It seems to me that the Reporter of Decisions" meets that requirement.--agr (talk) 16:19, 24 July 2015 (UTC)
 * But we want to cite to the Court's opinion itself when we are describing that opinion, and certainly if we want to quote the actual language the Court used, as it's that language is the law, not the Reporter of Decision's language, and the opinion is the most authoritative source for its own content. "Interpretation" is something else entirely, that's not what we're talking about here. The syllabus doesn't even so much "interpret" the Court's opinion as it condenses or abbreviates it; its language is often nearly verbatim chunks of the Court's opinion, just with citations and rhetoric omitted. Again, I think the primary vs. secondary distinction here is academic because of how the syllabus was being misused here, quoted and cited as if it was the Court's opinion and its language was controlling law. I think it's all well and good for editors to use the syllabus in their own notes as a helpful guide to what the operative parts of the opinion might be, and to point to it on talk page discussions if there is a disagreement with other editors. But I'm still failing to see the utility of it within the article itself (unless maybe as a "see also" supplemental cite), in part because I don't know that a layperson is going to understand the syllabus any better than the opinion itself given how closely the language tracks. And it's at best misleading to cite to it instead of the Court's opinion, and completely incorrect to quote the syllabus. postdlf (talk) 16:42, 24 July 2015 (UTC)
 * ^What he said. GregJackP   Boomer!   16:45, 24 July 2015 (UTC)
 * I also concur with postdlf's remarks. Citing to the syllabus to support an assertion about what the case said is like citing to a film's trailer to support an assertion about the plot of the film. -- Notecardforfree (talk) 18:59, 24 July 2015 (UTC)


 * Yes, I agree with user Postdlf as well. The discussion between me and editor GregJackP was really two lawyers debating the issue of whether the Syllabus is a primary source or a secondary source for purposes of Wikipedia. It would be incorrect to cite the Syllabus where you're claiming that your source is the Court opinion. Famspear (talk) 01:10, 25 July 2015 (UTC)
 * I certainly did not take your comments to mean that it was OK to cite the syllabus as if it were the opinion of the Court. I saw it as more of a Wiki-academic debate, between two colleagues discussing a relatively minor point. GregJackP   Boomer!   01:29, 25 July 2015 (UTC)

Agreed... Regards.... Famspear (talk) 16:00, 25 July 2015 (UTC)