Without getting into the merits of the majority opinion in King v. Burwell, I just want to note that methodologically it is both textualist and originalist. The key sections are Parts II.A. and B. In Part II.A., the majority looks closely at various textual provisions which (it says) raise doubt about whether the key phrase "an exchange established by a state" really means what it appears to mean. Then, after concluding (mainly on the basis of the text) that the key phrase is ambiguous, Part II.B turns to the majority's understanding of the intent of the enacting Congress in order to resolve the ambiguity.
Here is some of the key language:
Here, the statutory scheme compels us to reject petitioners’ interpretation because it would destabilize the individual insurance market in any State with a Federal Exchange, and likely create the very “death spirals” that Congress designed the Act to avoid. See New York State Dept. of Social Servs. v. Dublino, 413 U. S. 405, 419–420 (1973) (“We cannot interpret federal statutes to negate their own stated purposes.”).
As discussed above, Congress based the Affordable Care Act on three major reforms: first, the guaranteed issue and community rating requirements; second, a requirement that individuals maintain health insurance coverage or make a payment to the IRS; and third, the tax credits for individuals with household incomes between 100 percent and 400 percent of the federal poverty line. In a State that establishes its own Exchange, these three reforms work together to expand insurance coverage. …
Under petitioners’ reading, however, the Act would operate quite differently in a State with a Federal Exchange. As they see it, one of the Act’s three major reforms—the tax credits—would not apply. And a second major reform—the coverage requirement—would not apply in a meaningful way. …
It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 60) (“Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”). Congress made the guaranteed issue and community rating requirements applicable in every in the Nation. But those requirements only work when combined with the coverage requirement and the tax credits. So it stands to reason that Congress meant for those provisions to apply in every State as well.
This is originalism: it is looking at the intent of the enactors to reach a conclusion about the original meaning of the enactment. (Whether it is persuasive originalism I leave for another day).
Posted at 6:08 AM