The Subsidy Question in King v. Burwell – A Federalist Response to Crony Capitalism

Antonio F. Perez – On the surface, King v. Burwell appears to be a simple case about statutory interpretation. In the Affordable Care Act (widely known as Obamacare), when Congress referred to the “State,” in the provision triggering federal subsidies to insurance consumers for purchases made from federally-authorized insurance providers selling federally-authorized insurance products, should the “State” be understood to refer to the federal market (i.e., exchanges) as well as “State” markets. Simple tools of statutory construction–namely, that Congress knew full well how to refer to a “federal” exchange and failed to do so–would seem to be sufficient to supply a result. It would also seem be a stretch to rely on legislative history to overturn this conclusion.
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Citation: Antonio F. Perez, The Subsidy Question in King v. Burwell – A Federalist Response to Crony Capitalism, 23 U. Miami Bus. L. Rev. 283 (2015).
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