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Tax Credits on Federally Created Exchanges: Lessons from a Legislative Process Failure Theory of Statutory Interpretation

This Essay uses the “legislative process failure theory of statutory interpretation” to analyze whether the Affordable Care Act authorizes tax subsidies for individuals who enroll in health care plans through federally created American Health Benefit Exchanges. The Supreme Court recently granted cert. on this question, and a negative resolution by the Court could threaten the viability of the entire Act. The legislative process failure theory asserts that courts should use contextual evidence, including legislative history, of legislators’ likely understanding of a statute to resolve statutory meaning when there is reason to believe that a technical Textualist inquiry into the objective meaning leads to a different interpretation from that likely understanding and Congress was not aware of this potential difference. Applied to the question of the ACA subsidies on federally created exchanges, this analysis relies on the first-blush impression that federally created exchanges will substitute in all respects for state established ones, together with the absolute lack of any discussion of a contrary meaning in the legislative history or popular explanations of the Act, to conclude that the Court should interpret the ACA to authorize subsidies on federally created exchanges.