Six Words You’ll Hear a Lot in ACA Hearings

By Rick Bell

Mar. 2, 2015

It’s déjà vu. But is it all over again?

It seems like we’ve been at these crossroads before. It was 2012, and the U.S. Supreme Court was hearing arguments in a case regarding the individual mandate, the initial litmus test to the constitutionality of the Patient Protection and Affordable Care Act.

Fast-forward three years, and here we are again. Same panel, same general theme. The Supreme Court will hear arguments on March 4 regarding the constitutionality of the legality of using individual premium subsidies under the Affordable Care Act for the 34 states that did not adopt a state-based exchange.

As with 2012, the devil will be in the details. Or rather, in how the ACA is worded. These arguments will offer clues to how the court will rule.

And, notes Lisa Schencker of Modern Healthcare, the ruling could hinge on six words:

Observers will be particularly watching the questions and reactions from Chief Justice John Roberts and Justice Anthony Kennedy, who are considered potential swing votes. The high court’s ruling is expected in June.

“Sect. 1401 of the ACA says the premium tax credits are based on premiums for plans offered through ‘an Exchange established by the State.’ If the law's opponents have their way, the justices will focus solely on those six words.

“The challengers argue that phrase means the subsidies should be available only in states that have set up their own exchanges. The government counters that the phrase is a “term of art” that includes the federally established exchange. When read in context, the government argues, the law is clear in allowing subsidies in all states.

“At least four of the justices, led by Antonin Scalia, are often identified as textualists. They say the proper way to interpret a statute is to examine its language in context, rather than looking at legislative intent or history. Justice Roberts and Justices Clarence Thomas and Samuel Alito also tend to be textualists,” said Todd Gaziano, a senior fellow in constitutional law with the conservative Pacific Legal Foundation, which has filed a separate lawsuit challenging the ACA.

“Supporters of the ACA say a textual approach should produce a win for the Obama administration because the law as a whole supports subsidies in all the states.”  

Six words … among the many that will be bandied back and forth March 4 during the hearing. My colleague Sarah Sipek and I will be live blogging throughout the day’s proceedings that will include expert commentary by Workforce’s “Acing the ACA” columnist and health care reform expert Gary Kushner. Join us over on Sipek’s “Working Well" blog to check out Workforce's insight on the proceedings.

Rick Bell is Workforce’s editorial director. For comments or questions email

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