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King v Burwell

King v Burwell

Page 1: King v Burwell

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Date Created:December 22, 2014

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No. 14-114 THE 

Supreme Court the United States 
DAVID KING, AL., 
Petitioners, 
SYLVIA BURWELL, SECRETARY HEALTH
 AND HUMAN SERVICES, AL.,
 
Respondents. Writ Certiorari the United States Court Appeals for the Fourth Circuit 
BRIEF AMICUS CURIAE
 JUDICIAL WATCH, INC. SUPPORT PETITIONERS
 
Michael Bekesha JUDICIAL WATCH, INC. 425 Third Street, S.W., Ste. 800 Washington, 20024 
(202) 646-5172 mbekesha@judicialwatch.org 
Counsel for Amicus Curiae 
QUESTION PRESENTED 
Section 36B the Internal Revenue Code, which was enacted part the Patient Protection and Affordable Care Act (ACA), authorizes federal tax-credit subsidies for health insurance coverage that purchased through Exchange established theState under section 1311 the ACA. 
The question presented whether the InternalRevenue Service (IRS) may permissibly promulgate regulations extend tax-credit subsidies tocoverage purchased through Exchanges established the federal government under section 1321 theACA. 
TABLE CONTENTS 
QUESTION PRESENTED ......................................... 

TABLE CONTENTS ............................................ 

TABLE AUTHORITIES ..................................... iii 

INTEREST JUDICIAL WATCH, INC .................1 

SUMMARY THE ARGUMENT ............................2 

ARGUMENT ...............................................................3 	
The D.C. Circuits Ruling 

Aiken County Highly Probative ...................3 

II. 
Both the Plain Language and the
Congressional Purpose Section
  36B Are Clear and Unambiguous ....................5 

CONCLUSION............................................................9 

TABLE AUTHORITIES 
CASES 
Board Governors the Fed.  
Reserve Sys. Dimension Fin. Corp., 
474 U.S. 361 (1986) ............................................ 

Chevron U.S.A. Inc. Natural 
Res. Def. Council, Inc., 
467 U.S. 837 (1984) ........................................ 

Fin. Planning Assn Sec. 
 and Exch. Commn, 
482 F.3d 481 (D.C. Cir. 2007) ............................ 6-7 

Harry Marchant, 291 F.3d 767 (11th Cir. 2002) .............................. Aiken County, 725 F.3d 255 (D.C. Cir. 2013)................ 
Mayo Found. for Med. Educ. Research United States, 
131 Ct. 704 (2011) ............................................. 

Meriden Trust and Safe Deposit Co. Fed. Deposit Ins. Corp., F.3d 449 (2d Cir. 1995) .................................... 

Printz United States, 
521 U.S. 898 (1997)  ............................................... 

Rust
 Sullivan, 
500 U.S. 173 (1991)  ...............................................7
 
Silva-Hernandez 
U.S. Bureau  

Citizenship Immigration Servs., 
701 F.3d 356 (11th Cir. 2012)................................6 

Village Barrington 
Surface Transp. Bd., 
636 F.3d 650 (D.C. Cir. 2011) ................................5 

STATUTES
 U.S.C.  706(2)(A) .....................................................9
 U.S.C.  706(2)(B) .....................................................9
 U.S.C.  706(2)(C) .....................................................9 U.S.C.  36B(c)(2)(A)(i) ................................. passim
 

INTEREST JUDICIAL WATCH, INC.1 
Judicial Watch, Inc. (Judicial Watch) not-for-profit, educational organization that seeks topromote transparency, integrity, and accountabilityin government and fidelity the rule law. Judicial Watch regularly monitors significant developments the court systems and the law, pursues public interest litigation, and files amicus curiae briefs issues public concern.  Judicial Watch regularly files amicus curiae briefs means advance its public interest mission and has appeared amicus curiae this Court number occasions. 
Having interest promoting the rule law,Judicial Watch concerned that the IRSs expansion Section 36B the ACA authorize the availability refundable tax credits beyond the clear andunambiguous language the statute disrupts the deliberate balance powers intended the Framers. addition, Judicial Watch seeks highlight recent case decided the U.S. Court Appeals forthe District Columbia Circuit (D.C. Circuit). Aiken County, 725 F.3d 255 (D.C. Cir.2013) (Aiken County), the D.C. Circuit addressed the importance the constitutional system sepa Pursuant Supreme Court Rule 37.6, Amicus Curiae states that counsel for party authored this brief wholeor part and that person entity, other than Amicus Curiae and its counsel, made monetary contribution intended fund the preparation and submission this brief.  All parties have consented the filing this brief; letters reflecting the parties consent have been filed with the Clerk. 
ration powers. Yet, date, neither the partiesnor the other amici curiae have applied Aiken County the facts this case. Nor have they addressedthe significant questions concerning the ExecutiveBranchs authority disregard clear and unambiguous laws passed the Legislative Branch. light Aiken County, clear that the issue before this Court great importance because unquestionably implicates the scope the Executive Branchs authority. Specifically, Petitioners requestthat the Court reaffirm the basic principle that theExecutive Branch cannot disregard federal statutesin favor its own policy choices and reverse theruling the U.S. Court Appeals for the FourthCircuit (Fourth Circuit). the ruling were stand, the constitutional system separation ofpowers would significantly altered. 
SUMMARY THE ARGUMENT 
The plain language Section 36B the ACA isclear and unambiguous. Congress made unequivocal policy decision provide refundable tax credits individuals who purchase health insurance coverage through Exchange established one ofthe states. Yet the Executive Branch interpretedSection 36B authorize the receipt refundabletax credits individuals who purchase healthinsurance coverage through Exchange establishedby the federal government. Because the text the statute clear, the interpretation the IRS notentitled deference.  Even were entitled deference, the IRSs interpretation does not harmonize with the clear purpose Congress. Because the IRSs interpretation contrary the plain languageand the express purpose the statute, Section 36Bmust applied written. The Fourth Circuits ruling should reversed. 
ARGUMENT 	The D.C. Circuits Ruling Aiken County Highly Probative. Aiken County, case that raise[d] significant questions about the scope the Executives authority disregard federal statutes, the D.C. Circuitdeclared that [u]nder Article the Constitution and relevant Supreme Court precedents, the President must follow statutory mandates long there appropriated money available and the Presidenthas constitutional objection the statute. 725 F.3d 257, 259. issue Aiken County was petition for writ mandamus that sought compel the Nuclear Regulatory Commission adhere statutory deadline for completing thelicensing process for approving disapproving application store nuclear waste Yucca Mountain Nevada. the Court explained,  
[i]f the President has constitutional objection statutory mandate thePresident may decline follow the law unless and until final Court order dictates otherwise. But the President maynot decline follow statutory mandate simply because policy objections. course, Congress appropriates money for statutorily mandated program, the Executive obviously cannot move forward.  But absent lack funds claim unconstitutionality that has not been rejected byfinal Court order, the Executive must abide statutory mandates. These basic constitutional privileges apply tothe President and subordinate executive agencies. Aiken County, 725 F.3d 259. granting the petition, the D.C. Circuit concluded: overstatement say that ourconstitutional system separation powers would significantly altered were allow executive and independent agencies disregard federallaw the manner asserted this case the Nuclear Regulatory Commission. Our decision today rests the constitutional authority Congress and therespect that the Executive and the Judiciary properly owe Congress thecircumstances here. 
Id. 267. 
The same true here. There are constitutional concerns with limiting the receipt refundable tax credits only individuals who purchasehealth insurance coverage through Exchange established one the states. The Executive Branch simply seeks replace Congress policy choice about who eligible receive refundable tax credits with its own. will addressed below, the plain language and express purpose Section 36Bmake clear Congress policy choice. The Constitutional authority Congress  well the respect that the Executive and Judicial Branches owe Congress  demands that Congress policy choice prevails. Section 36B should applied written. 
II. 	Both the Plain Language and the  Congressional Purpose Section 36B Are Clear and Unambiguous. considering the legality agency action, acourt must measure agencys action against thestatutory directive. If the statute clear and unambiguous that the end the matter, for the court, well the agency, must give effect the unambiguously expressed intent Congress. Board Governors Fed. Reserve Sys. Dimension Fin. Corp., 474 U.S. 361, 368 (1986). addition, agency has exceeded statutes clear and unambiguous boundaries, the agencys interpretation isunlawful. Village Barrington Surface Transp. Bd., 636 F.3d 650, 660 (D.C. Cir. 2011). 
Congress speaks through the laws enacts(Aiken County, 725 F.3d 260) and the text ofSection 36B clear and unambiguous.  Section 36B plainly states that only individual who purchaseshealth insurance coverage through Exchangeestablished the State under section 1311 the [ACA] eligible receive refundable tax credits. U.S.C.  36B(c)(2)(A)(i). without question that Congress intended for only individuals who purchase health insurance coverage through anExchange established one the states beeligible receive refundable tax credits.  Yet, the IRS interpreted Section 36B more broadly. has authorized the receipt refundable tax credits alsoto individuals who purchase health insurance coverage through Exchange established the federal government. expanding the availability refundable tax credits beyond its statutory authority,the IRS fail[ed] respect the unambiguous textuallimitations Section 36B.  Fin. Planning Assn Sec. and Exch. Commn, 482 F.3d 481, 490 (D.C. Cir.2007). 
The IRSs interpretation also not entitled Chevron deference. Where, here, Congress hasunambiguously expressed [its] intent through theplain language statute, deference afforded agency. Chevron U.S.A. Inc. National Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984); see also Dimension Fin. Corp, 474 U.S. 368 ([T]hetraditional deference courts pay agency interpretation not applied alter the clearly expressed intent Congress). determine whether Congress intent clear, courts employ the traditional tools statutory construction. Silva-Hernandez U.S. Bureau Citizenship Immigration Servs., 701 F.3d 356, 361 (11th Cir. 2012).Courts must begin examining the text thestatute determine whether its meaning clear. Harry Marchant, 291 F.3d 767, 770 (11th Cir. 
2002). They must also presume that Congress said what meant and meant what said. Id. The plain language Section 36B clear and unambiguous. Section 36B must applied written.  
Even the IRSs interpretation were entitled Chevron deference  which not because Section 36B clear and unambiguous  the IRS has impermissibly authorized extension the law whichdoes not harmonize with the clear purpose Congress. See Rust Sullivan, 500 U.S. 173, 184 (1991)(noting that permissible agency interpretation ofthe statute one that reflects plausible construction the plain language the statute and does nototherwise conflict with Congress expressed intent); Meriden Trust and Safe Deposit Co. Fed. Deposit Ins. Corp., F.3d 449, 453 (2d Cir. 1995) (statingthat agencys interpretation statute will reversed if appears from the statute its legislative history that the [agencys] interpretation iscontrary Congress intent).   
When enacted Section 36B, Congress made deliberate policy choice provide refundable taxcredits only individuals who purchase health insurance coverage through Exchange establishedby one the states.  Congress heard extensivetestimony criticizing healthcare system operated the federal government.  Also because Congressgenerally cannot require states implement federallaws (Printz United States, 521 U.S. 898 (1997)),its policy decision provide refundable tax credits only individuals who purchase health insurance coverage through Exchange established one the states was Congress attempt strongly encourage states establish Exchanges. Therefore, Congress chose not create nationalized healthcare system. Instead, chose for the federal government establish Exchange only state failed so. Authorizing the receipt refundable tax credits individuals who purchase health insurance through Exchange established the federal government would not incentivize the states create Exchanges. may even encourage some ofthe States not create Exchange.  The IRS Rule therefore directly contradicts Congress policy choice. 
Similarly, agencys interpretation must bebased permissible construction the statute.Courts therefore must determine whether agencys interpretation manifestly contrary thestatute. See Chevron, 467 U.S. 843-44; see also Mayo Found. For Med. Educ. Research United States, 131 Ct. 704, 711 (2011) (finding thatdeference the agencys interpretation was appropriate because the statute did not speak with theprecision necessary definitively answer the question and the agencys interpretation was not manifestly contrary the statute).  Unlike the statute Mayo, Section 36B provides all theinformation needed definitively answer the question who eligible receive refundable taxcredits. specifically authorizes the receipt ofrefundable tax credits individuals who purchasehealth insurance coverage through Exchangesestablished the State. U.S.C. 36B(c)(2)(A)(i). The federal government not state, and Exchange established the federal government not Exchange established state. Congress spoke with the precision necessary leave doubt what sought accomplish, any extension the IRS contradictory interpretation and excess its authority. Chevron, 467 
U.S. 843-44. 
CONCLUSION 
The plain language Section 36B clear andunambiguous. Congress made unequivocal policy decision provide refundable tax credits individuals who purchase health insurance coveragethrough Exchange established one the states. The IRS impermissibly interpreted Section 36B authorize the receipt refundable tax creditsto individuals who purchase health insurance coverage through Exchange established the federal government. Because the IRS Rule contrary theplain language and the express purpose Section36B, in excess statutory jurisdiction, authority, limitations, contrary its constitutional right, power, [or] privilege, and not accordance with law. U.S.C.  706(2)(A), (B), and (C).  For the foregoing reasons, Judicial Watch respectfully requests that this Court reaffirm the basic principle that the Executive Branch cannot disregard federalstatutes favor its own policy choices and reverse the Fourth Circuits ruling. 
Respectfully submitted, 
Michael Bekesha 
Counsel Record 
JUDICIAL WATCH, INC. 425 Third Street, S.W., Ste. 800 Washington,  20024 
(202) 646-5172 mbekesha@judicialwatch.org 
Counsel for Amicus Curiae 
December 24, 2014