Today, in Pruitt v. Burwell, another federal court concluded that the IRS rule authorizing tax credits and cost-sharing subsidies for the purchase of health insurance in federal exchanges violates the text of the PPACA. In reaching this result, Judge White of the U.S. District Court for the Eastern District of Oklahoma concurred with the initial panel decision of the U.S. Court of Appeals for the D.C. Circuit in Halbig v. Burwell and rejected the conclusions of the U.S. Court of Appeals for the Fourth Circuit in King v. Burwell. A fourth case against the IRS rule remains pending in federal district court in Indiana.
The opinion is relatively short and quite direct, quickly cutting through the various attempts to cast plain statutory language as ambiguous or otherwise get around the text that Congress enacted. As I’m on the road (returning from a debate on the merits in these cases with Professor Nicholas Bagley at the University of Michigan Law School), I’ll just post the concluding section of Judge White’s opinion. More thoughts may follow.
The court is aware that the stakes are higher in the case at bar than they might be in another case. The issue of consequences has been touched upon in the previous decisions discussed. Speaking of its decision to vacate the IRS Rule, the majority in Halbig stated “[w]e reach this conclusion, frankly, with reluctance.” 758 F.3d at 412.
Other judges in similar litigation have cast the plaintiffs’ argument in apocalyptic language. The first sentence of Judge Edwards’ dissent in Halbig is as follows: “This case is about Appellants’ not-so-veiled attempt to gut the Patient Protection and Affordable Care Act (‘ACA’).” 758 F.3d at 412-13. Concurring in King, Judge Davis states that “[a]ppellants’ approach would effectively destroy the statute . . . .” 759 F.3d 358, 379 (Davis, J., concurring). Further, “[w]hat [appellants] may not do is rely on our help to deny to millions of Americans desperately-needed health insurance. . . ..” Id.
Of course, a proper legal decision is not a matter of the court “helping” one side or the other. A lawsuit challenging a federal regulation is a commonplace occurrence in this country, not an affront to judicial dignity. A higher-profile case results in greater scrutiny of the decision, which is understandable and appropriate. “[H]igh as those stakes are, the principle of legislative supremacy that guides us is higher still. . . This limited role serves democratic interests by ensuring that policy is made by elected, politically accountable representatives, not by appointed life-tenured judges.” Halbig, 758 F.3d at 412.
This is a case of statutory interpretation. “The text is what it is, no matter which side benefits.” Bormes v. United States, 759 F.3d 793, 798 (7 Cir.2014). Such a case (even if affirmed on the inevitable appeal) does not “gut” or “destroy” anything. On the contrary, the court is upholding the Act as written. Congress is free to amend the ACA to provide for tax credits in both state and federal exchanges, if that is the legislative will. As the Act presently stands, “vague notions of a statute’s ‘basic purpose’ are nonetheless inadequate to overcome the words of its text regarding the specific issue under consideration.” Mertens v. Hewitt Assocs., 508 U.S. 248, 261 (1993) (emphasis in original). It is a “core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.” Util. Air Regulatory Group v. EPA, 134 S.Ct. 2427, 2446 (2014). “But in the last analysis, these always-fascinating policy discussions are beside the point. The role of this Court is to apply the statute as it is written – even if we think some other approach might ‘accor[d] with good policy.’” Burrage v. United States, 134 S.Ct. 881, 892 (2014)(quoting Commissioner v. Lundy, 516 U.S. 235, 252 (1996)(other citation omitted)). See also Michigan v. Bay Mills Indian Community, 134 S.Ct. 2024, 2034 (2014) (“This Court has no roving license, in even ordinary cases of statutory interpretation, to disregard clear language simply on the view that . . . Congress ‘must have intended’ something broader.”); Util. Air Regulatory Group v. EPA, 134 S.Ct. 2427, 2446 (2014)(“The power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration. But it does not include a power to revise clear statutory terms that turn out not to work in practice.”).
The animating principles of this court’s decision have been articulated by the Tenth Circuit: “[C]ourts, out of respect for their limited role in tripartite government, should not try to rewrite legislative compromises to create a more coherent, more rational statute. A statute is not ‘absurd’ if it could reflect the sort of compromise that attends legislative endeavor.” Robbins v. Chronister, 435 F.3d 1238, 1243 (10th Cir. 2006). “An agency’s rulemaking power is not ‘the power to make law,’ it is only the ‘power to adopt regulations to carry into effect the will of Congress as expressed by the statute.’” Sundance Associates, 139 F3d at 808 (citation omitted) “In reviewing statutes, courts do not assume the language is imprecise … Rather, we assume that in drafting legislation, Congress says what it means.” Id at 809.
The court holds that the IRS Rule is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, pursuant to 5 U.S.C. §706(2)(A), in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, pursuant to 5 U.S.C. §706(2)(C), or otherwise is an invalid implementation of the ACA, and is hereby vacated.