Holding Congress to its Word: Statutory Realism, Second-Generation Textualism, and ACA Entrenchment in Maine Community Health Options

Abbe R. Gluck[*]

“The stakes of the risk corridor cases underscore the ACA’s outsized impact. The Supreme Court decides many of the most contentious and significant issues facing the nation, but even the Supreme Court does not get many $12 billion cases.”

- Former U.S. Solicitor General Paul Clement, who opposed the ACA in the Supreme Court twice before defending it in 2020[2]

No statute in modern American history has been challenged as much as the Affordable Care Act (ACA). Few, if any, other statutes are as long or as complex in design. No statute has been as politically wounded: Congress tried unsuccessfully to repeal the ACA more than seventy times and then worked instead, sometimes with the White House, to undermine it. The ACA has been to the Supreme Court a stunning six times in the past eight years, with a seventh case on the docket for 2020, and has been the subject of more than a thousand cases in the lower courts.

Given this history, it is no surprise that the ACA has become a testing ground for some of the most important debates in modern statutory interpretation and implementation. The ACA’s complex structure puts front and center a dizzying array of state and private statutory implementers whose relationships with the federal government remain largely doctrinally undefined, even as Congress relies on them for the law to function. The cases that come into court—often worth billions of dollars—put the ACA’s two thousand pages in front of a federal bench still grappling with Justice Antonin Scalia’s textualist legacy and still deciding for itself how to interpret statutes in the modern era. These cases continuously raise questions about reconciling textualism with realism about Congress, how Congress designs statutes today, and the implementers Congress uses.

In Maine Community Health Options v. United States, more than one hundred health insurance companies charged Congress with $12 billion in political sabotage.[3] Only in the context of the ACA would a $12 billion case—the Court’s fifth ACA case[4]—be viewed as a relatively sleepy dispute. Maine Community got far less attention than earlier ACA blockbuster cases, but do not be fooled. The opinion takes advantage of its low political salience to start plowing an important path toward a modern theory of Congress: how it acts; how it should act; how it drafts and designs statutes, and the materials it relies on. Maine Community is also an opinion about the entrenchment of the most resilient statute in modern American history.

At the most basic level, the Court decisively held, in an 8–1 opinion, that Congress had to keep its promise, written into the text of the ACA, to compensate insurers for taking on risk during the first three transitional years of the law.[5] Congress had tried to cut those payments with appropriations riders,[6] leaving insurers with an unexpected $12 billion shortfall.[7]

But at a level of much deeper significance, the decision is refreshingly modern and realist, even as it is resoundingly textualist. And it has as much significance for the ACA as it does for statutory interpretation. As to the ACA, Maine Community is the first time the Court has reviewed a congressional attempt at ACA political sabotage; the ruling already has had repercussions for different sabotage-related cases pending in the lower courts. The case also profoundly highlights the way in which the ACA, like many other modern statutes, relies deeply on private industry to carry out its mission, and the implications of such reliance for keeping Congress to its word. Moreover, it is the first time that former prominent ACA opponents defended the law’s promises in the Supreme Court, and the first 8–1 opinion decisively upholding the ACA—two signs of the ACA’s entrenchment and resilience after a decade of unprecedented challenge. The first existential challenge to the law was brought within moments of the ACA’s enactment in 2010; Maine Community was decided shortly after the law’s tenth anniversary.

As to statutory interpretation, the case is also another example of Justice Scalia’s textualism on display through the pen of a notably liberal justice, this time Justice Sonia Sotomayor, who wrote the opinion. At the same time, Maine Community evinces a Court eager to utilize internal congressional materials—including the U.S. Government Accountability Office (GAO) handbook and the Congressional Budget Office (CBO) estimates—to aid in its own text-based interpretation of a federal statute. In so doing, the Court may be taking a side in brewing academic and judicial debates in statutory interpretation about the relevance to courts of such materials and of knowledge about how Congress works. Enticingly, these developments, together with similar moves in the earlier ACA case, King v. Burwell, also suggest that the Court may be pushing textualism into a second generation—one that is more respectful of Congress, and is more connected to the Legal Process approach of the pre-textualist era. That’s a lot to pack into a relatively under-the-radar dispute.

I. Overview: Risk Corridors and the ACA’s Reliance on the Private Insurance Industry

One of the most interesting things about the ACA, as I have written elsewhere,[8] is how the law has been able to fundamentally transform the healthcare system even as it was structured as a path-dependent, incremental, political compromise. The ACA itself does not work a wholesale government takeover of the healthcare system; instead, it builds on what came before, including the nation’s heavy reliance on the private-insurance industry as the primary vehicle for getting most of the population insured. Insurance is the core of the ACA: The law aims to get everyone covered to give everyone access to health care. The ACA largely does this by retaining the fragmented public-private insurance system that preexisted the law but making it much more generous and accessible across every dimension. Understanding the ACA’s reliance on the private insurance industry is critical to the significance of Maine Community for both the ACA and other laws with similar statutory design.

The ACA retains the preexisting private-insurance system, employer-based and individual, which accounted for more than fifty percent of Americans’ insurance at the time the ACA was drafted and continued to do so ten years later.[9] (The rest of the insured population obtains health insurance through government programs like Medicare and Medicaid or, before the ACA, had no insurance at all.) The ACA’s compromises satisfied few: Some health-policy experts wished the ACA had nationalized insurance under government control;[10] others found the ACA’s heavy-handed approach to the still-private insurance industry—the ACA requires insurers to change their business model in very significant ways[11]—an unacceptable overreach.

The ACA imposes major new restrictions on how insurers do business. Among other new requirements, insurers can no longer “medically underwrite”—reject or rescind coverage due to preexisting conditions or health status.[12] The ACA also makes insurance more affordable and transparent by eliminating lifetime and annual caps and co-pays for certain preventive services.[13] It requires all plans on the law’s new insurance exchanges to meet minimum quality standards and cover ten essential health benefits.[14]

Here is where the issue in Maine Community comes in. To make the new requirements more affordable for insurers, the ACA both increased the customer pool (with the so-called insurance purchase mandate, which requires almost everyone in the population to obtain insurance) and provided three critical funding streams, known as the “three Rs”: risk corridors,[15] risk adjustment,[16] and reinsurance.[17] The three Rs are financial mechanisms designed to stabilize the insurance markets during the transition to the new regime and encourage plans to serve high-cost patients. These programs involve redistribution from plans that on average have fewer high-cost patients to plans that cover more people with chronic conditions and other higher-cost medical needs. The philosophy underlying them is that plans that serve higher-cost patients should be rewarded for doing so while plans that serve lower-cost patients should give up a portion of the money they are saving by paying less expensive claims. The ACA also attempts to make coverage affordable for relatively low-income people by requiring insurers to reduce “cost sharing” (for example, deductibles and copays) charged to individuals; the law encourages insurers to enroll those low-income patients by reimbursing plans for those reductions.[18] These so-called “cost-sharing reduction” payments (CSRs) were intended to be another important funding stream in addition to the three Rs.

Recognizing the importance of all of these payments to ACA implementation, opponents targeted several of them for attack. More than one hundred insurance companies have sued based on those attacks, including in Maine Community.[19]

II. Congressional Opposition, the Insurance “Bailout,” and the Appropriations Rider

In 2012, after a majority of the Supreme Court rejected the first major constitutional challenge to the ACA in National Federation of Independent Businesses v. Sebelius (NFIB),[20] opponents turned their efforts to the political arena, even as other litigation efforts continued.[21] Repeated efforts at “repeal and replace” began almost immediately.[22] In 2013, Congress refused to appropriate other funding required for the Department of Health and Human Services (HHS) to satisfy its outreach obligations under the law—including funds used to inform individuals of their coverage options, a task that was necessary to draw more people into the insurance markets.[23] Later that year, Republicans in the House triggered a government shutdown by refusing to pass a continuing resolution to fund the government unless Democrats acceded to their ACA-related demands.[24] Shortly thereafter, the House filed a lawsuit, under the Appropriations Clause of the federal Constitution, challenging the Obama administration’s effort to make the CSR payments after Congress refused to make a specific appropriation.[25] President Trump ultimately suspended the CSRs entirely and the parties settled.[26] But more than fifty insurance companies then sued in federal court for the money—more than $2 billion—owed to them.[27] In August 2020, as further discussed below, the Federal Circuit issued two decisions in favor of the insurers relying heavily on Maine Community.[28]

Maine Community stems from another aspect of this undermining effort: Congress’s attempts to stop the risk corridor payments. By statute, the risk corridors program was a three-year program, covering plan years 2014 through 2016.[29] The statutory formula called for HHS to make the payments to plans whose costs were three percent higher than a target amount, and for HHS to collect from plans whose costs were three percent lower.[30] The idea behind them was to incentivize insurers to offer products in the new ACA marketplaces by providing some protection against unexpected losses. As it turned out, many insurers had unanticipated losses—in part because many did not set premiums for 2014 aware of what would be the Obama administration’s decision to permit “grandmother plans”—allowing people to renew or extend their non-compliant current plans rather than enroll in an ACA plan (President Obama’s famous “[i]f you like your health care plan, you'll be able to keep your health care plan”[31] promise).[32] HHS, therefore, concluded that the risk corridor payments would not be budget neutral—it would be paying more to higher-cost plans that exceeded the amounts than it would be collecting from lower-cost plans.[33]

ACA opponents seized on the announcement, with Senator Marco Rubio labeling the payments a “taxpayer-funded bailout for insurance companies.”[34] Senator Rubio proposed an appropriations rider to block the payments, which—after two years of trying to get it through Congress—was enacted at the end of 2014 as part of the 2015 appropriations bill and then re-enacted for the two subsequent years. The rider provided: “None of the funds made available by this Act . . . or transferred from other accounts funded by this Act to the ‘Centers for Medicare and Medicaid Services Program Management’ account, may be used for payments under Section 1342(b)(1) of Public Law 111–148 (relating to risk corridors).”[35]

Because under the formula, HHS had paid more than it took in, HHS did not have enough money and had to prorate the payments. It ultimately only paid 12.6% of the money the insurers expected.

Insurers had already set their premiums for 2014 and 2015 relying on the risk corridor formula and sued. They argued that they had an entitlement written into the ACA in the statutory formula of payments promised, and that a rider could not effectively repeal that promise.[36] The government responded that “[t]he ACA did not impose an obligation, enforceable through private actions for damages, to make risk-corridors payments in excess of appropriations.”[37] In 2018, after mixed results in the Court of Federal Claims, the Federal Circuit Court of Appeals held that the ACA did give insurers the right to the risk corridor payments, but that the right was indeed revoked by the appropriations rider.[38]

Some insurers went out of business due to Congress’s actions and many more increased premiums. By one count, eighteen insurers who had participated in the exchange discontinued operations.[39] Experts point to the rider as a contributing factor in the demise of sixteen of the twenty-three nonprofit Consumer Oriented and Operated Plans (CO-OPs) created by the ACA by the summer of 2016.[40] Estimates suggest that nearly one million individuals lost coverage as a result, some mid-year.[41] Economists have also estimated that the failed risk corridors could account for up to eighty-six percent of the growth in premiums from 2015 to 2017, estimated at roughly a nine percent increase from 2015 to 2016 and a twenty-five percent increase the following year.[42]

In June 2019, the Supreme Court granted certiorari in three consolidated cases. The question on which the Court granted certiorari implicated much more than the ACA: “Whether Congress can evade its unambiguous statutory promise to pay health insurers for losses already incurred simply by enacting appropriations riders restricting the sources of funds available to satisfy the government’s obligation.”[43] In April 2020, the Court held that the ACA created a statutory obligation to pay, that insurers had a right to sue for the payments under the Tucker Act, and that the insurers could recover the money owed from the Judgment Fund.[44]

III. Statutory Entrenchment and the ACA

The Affordable Care Act is an extraordinary example of statutory entrenchment and transformation. In other work, I have illustrated how the law—originally viewed by many as an unsatisfying compromise that did not go far enough—transformed through and in fact because of persistent conflict into a statute now widely viewed as standing for the much stronger principle of universal access to health care for all.

Statutory design choices made out of political necessity—including leaving much of the ACA implementation to the states and private industry—were originally viewed by many as pathologies. But they turned out to be some of the statute’s greatest tools of resistance, pulling control of the law away from the new hostile administration and giving the statute enormous flexibility to adapt.[45] In large part because of the high-salience conflicts over the ACA, the United States has been engaged in a national conversation about healthcare for the past decade. The ACA puts many choices to states and industry—choices that induce industry reliance and business adaptation and engage state governments and citizenries. All of these conversations, changes, and decisions have further entrenched the law and the norms it has come to stand for.

Maine Community is more proof of that resilience. It was the first ACA case to reach the Court that did not draw political attention, light up the blog-o-sphere, or divide lawyers ideologically. Former U.S. Solicitor General Paul Clement—who argued the two major challenges against the ACA in the Court in 2012 and 2015—represented the insurers, this time to enforce the law’s promises. This was all the more significant because the case stemmed from the political effort in Congress to strangle the law.

For other statutes, this might not be news. But for the ACA, opposition to the statute has been a Republican Party loyalty litmus test since the ACA was enacted. Red states fought in Congress during the ACA’s drafting to maintain control of their insurance exchanges only to decline that option once the statute passed out of fear of doing anything to cooperate with the law.[46] Twenty-six states sued to strike down the statute as soon as it was enacted.[47] The Tea Party movement came to power because of the ACA and scored enormous victories in 2010,[48] ultimately provoking a government shutdown in 2013.[49] In 2014, after more GOP electoral victories, Senator Chuck Schumer said: “Democrats blew the opportunity the American people gave them. We took their mandate and put all of our focus on the wrong problem—health-care reform.”[50]

But by 2016, things had changed. Candidate Trump ran on replacing the ACA with “something better,” but radically, something that embodied the same universal coverage philosophy as the ACA itself. As he stated: “I am going to take care of everybody” and “[t]he government’s gonna pay for it.”[51] In 2017, swing Republicans saved the ACA from repeal largely because of fear of coverage losses, especially to the Medicaid population. By the ACA’s tenth anniversary, prominent Republicans, including former House Majority Leader Eric Cantor, were saying that the ACA had fundamentally changed the policy baseline for an acceptable Republican replacement—"the [new] test for an alternative was a comparison of coverage numbers”[52]—only a statute with the substantially same coverage would be politically palatable.

These changes are also evident at the Court itself. The first major constitutional challenge to the ACA, NFIB, was a resounding rejection of Congress’s own policy justifications for the law. Five justices refused to accept Congress’s conclusions about the effects of inadequate health care on the national market or to trust the mechanisms that Congress put in place to address the problem. Justice Scalia famously said at oral argument in NFIB that it would be cruel and unusual punishment—in violation of the “Eighth Amendment”—to make anyone “go through these 2,700 pages,” giving rise to the view that the statute was too complex, or even too irrational, for anyone to understand, much less read.[53]

But by 2015, when the second major existential challenge, King v. Burwell, reached the Court, things looked different. In King, the Court was confronted with sloppy drafting in the section of the ACA concerning insurance subsidies—language that, read hyperliterally and out of context, could have dramatically undermined, even destroyed, the new insurance markets in more than half the states. But unlike in NFIB, the Court (this time by a definitive 6–3 majority) showed off its understanding of how the law works in pages of description at the start of the opinion, and then emphasized that its role was to “respect” Congress;[54] that Congress had a “plan” and that the Court must “do [its] best”[55] and accord that plan “[a] fair reading.”[56] Whereas the Court in NFIB surprised states implementing the ACA by rendering the Medicaid expansion optional, the Court in King refused to do what challengers asked—pull the rug out from under states that had opted not to operate their own exchanges by denying them expected subsidies.

Maine Community continues on this path. Justice Sotomayor’s opinion for the Court displays a deft understanding of how the risk corridor program works and why it was enacted. The entire opinion turns on the promises the ACA makes to those who implement it and why the ACA needs to make those promises. Even Justice Alito’s lone dissent assumes for the purposes of his argument that “the Court is correct in holding that § 1342 of the Affordable Care Act created an obligation that was not rescinded by subsequent appropriations riders.”[57]

It would be an overstatement to say that Maine Community sets the stage for the next big ACA case on the docket, but it certainly lays groundwork. California v. Texas is another existential challenge to the whole ACA and will be heard in November 2020. There, opponents argue that Congress’s reduction of the insurance-mandate’s tax penalty to zero renders the mandate invalid as a tax and thus, per NFIB, without constitutional justification. More importantly, they argue that the entire law cannot operate without the mandate and so is inseverable from it: void in toto. I have detailed elsewhere the stunning weakness of this argument and how unmoored it is from settled severability doctrine.[58] But in terms of ACA entrenchment, California has been marked by the most extraordinary political line-crossing yet in ACA litigation. Prominent lawyers criticizing the challenge include two of the architects of King, two Republican attorneys general, and the Wall Street Journal editorial page, which began a piece criticizing the suit with the line “No one opposes Obamacare more than we do.”[59]

IV. Reliance on Private Implementers in the ACA and Beyond

The ACA is like a lot of other statutes—it’s just bigger. For that reason, it has tended to tee up new questions in court about modern statutory implementation that have purview for many other laws, as the Court itself recognized in phrasing its grant of certiorari in Maine Community broadly rather than as ACA specific. For example, the ACA has offered a buffet of cases about administrative waivers and the Administrative Procedure Act (APA).[61] But the ACA, like other statutes, relies on a host of actors outside the federal government, too. States and private industry—insurers most importantly but also providers like hospitals—are key implementers of the law. The last major challenge to the law, King, was about state implementation of the ACA (via the new insurance exchanges). The first major challenge, NFIB, was about both state implementation (the Medicaid expansion) and also the ACA’s intrusions into the private market with the insurance- purchase mandate.

The legal standards that apply to state and private implementation of federal law are largely unresolved, despite the fact that the ACA is far from the first law to utilize them. Administrative-deference doctrines have largely eschewed the questions about deference to such implementers— although there have been some interesting lower court cases taking a stab[62]—and questions concerning how and when the government commits to those implementers still largely remain unanswered. Even in NFIB, the Court was unwilling to announce a clear doctrinal rule for when spending conditions are unconstitutionally coercive. Instead, it adopted a “we know it when we see it” approach and held, in the context of the ACA’s original Medicaid expansion, that it had seen it.[63]

Maine Community takes a step forward. It is a realist opinion in its recognition of the importance for Congress to be able to rely on these private implementers. At oral argument, several justices emphasized the trust that the insurance industry had placed in Congress’s word in restructuring their operations to fulfill their ACA implementation role. Justice Elena Kagan asked: “So this is one where the ‘shall pay in’ is obligatory but the ‘shall pay out’ on the part of the government is not obligatory? . . . You pay in, that’s obligatory. We commit ourselves to paying out. It turns out, if we feel like it. What—what kind of—what kind of a statute is that?”[64] From Justice Stephen Breyer: “So why does the government not have to pay its contracts, just like anybody else? . . . Why isn’t it either a contract or close enough? It says, ‘shall pay.’ If you climb the pole, we’ll pay. They climbed the pole. Pay.”[65] From Chief Justice John Roberts: “[Y]ou don’t question that these insurance companies would not have participated in the risk corridor program but for the government’s promise to pay? . . . [I]t’s a good business opportunity for them because the government promised to pay.”[66]

The opinion clarifies for the first time that Congress can create obligations by statute alone; an appropriation is not required. (The Court did not take up the alternative question whether the obligations instead might be viewed as an implied-in-fact contract.[67]) The opinion concludes: “The Government should honor its obligations. . . . Alexander Hamilton stressed this insight as a cornerstone of fiscal policy. ‘States,’ he wrote, ‘who observe their engagements . . . are respected and trusted: while the reverse is the fate of those . . . who pursue an opposite conduct.’”[68]

The Court also recognized that not all statutes are the same—a mundane point, perhaps, but not really mundane in the Court’s legisprudential universe. This Court generally does not treat omnibus laws differently from single-subject laws, or long statutes differently from short ones and so on. Instead, it generally prefers “one-size-fits-all” rules of textual interpretation. But Congress does not draft uniformly, and it does deploy different conventions across different statutes.[69] In Maine Community, Justice Sotomayor recognizes this with respect to how Congress creates obligations:

Creating and satisfying a Government obligation, therefore, typically involves four steps: (1) Congress passes an organic statute (like the Affordable Care Act) that creates a program, agency, or function; (2) Congress passes an Act authorizing appropriations; (3) Congress enacts the appropriation, granting ‘‘budget authority’ to incur obligations and make payments, and designating the funds to be drawn; and (4) the relevant Government entity begins incurring the obligation. But Congress can deviate from this pattern. It may, for instance, authorize agencies to enter into contracts and ‘‘incur obligations in advance of appropriations.” . . . Congress can also create an obligation directly by statute, without also providing details about how it must be satisfied.[70]

This holding was clear enough to have an almost immediate impact on the ACA cases involving the cost-sharing reduction payments that had been pending in the Federal Circuit. The Federal Circuit requested supplemental briefing after Maine Community.[71] The Court’s opinion in Maine Community was sufficient writing on the wall for the government to drop its claim that, without an appropriation, the ACA did not create an obligation to pay the CSRs. In August, the Federal Circuit then followed Maine Community and held recovery is available pursuant to the Tucker Act; the question of the amount of damages remains pending.[72] Commentators opined that Maine Community lent momentum to the other cases, including the CSR cases, that had been filed challenging the Trump administration’s efforts to undermine the ACA.

Professor David Super has argued that the decision also gives new clarity to open questions about government shutdowns, making evident that “statutory beneficiaries have clear, immediate recourse” even if the government withholds appropriations temporarily.[73] Super writes that, until now, “advocates had been haunted by the worry that the Court might somehow refuse to honor the terms of appropriated entitlement statutes.”[74]

The Court concluded the insurers could sue under the Tucker Act which allows “claim[s] against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.”[75] The Court applied the “fair interpretation” test—which holds that a “statute creates a ‘right capable of grounding a claim within the waiver of sovereign immunity if, but only if, it can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained’”[76]—and held that the risk corridor payments satisfied the test[77] and did not fall into the exceptions the Court has developed.[78]

This question of the relationship between private implementers and a federal government that relies on their help in effectuating major statutory schemes is no small potatoes. It is worth noting that the vast majority of ACA litigation has, on some level, been about this very question. The last decade’s worth of litigation challenges have run the gamut from cases about the ACA’s new nondiscrimination provisions,[79] to its strong-arming of individuals into its markets,[80] to its requirements on employers (for example, three of the Court’s ACA cases featured employers who opposed the ACA’s “contraception mandate” for their insurance plans[81]). All of these cases, to some extent, address how far the ACA reaches into private markets to require or induce or encourage individuals, employers, and insurers to participate in its new system. The NFIB struggle over the Commerce Clause was, at bottom, about the same point.

All of these cases will have an impact on how government programs are structured in the future. Philosophical and legal opposition to the use of private implementers, or decisions allowing the government to stick them with unpaid bills, could chill future efforts to embed reforms in private implementers (like insurers and employers), or the states, and favor instead more direct national regulation, which would be harder to challenge. But it would be an ironic legacy for a law that began as a market-oriented compromise, and then was challenged as governmental overreach, to pave the way toward more nationalization. Maine Community offers some assurances to the nonfederal actors who Congress anoints as critical implementers of major statutory schemes. In so doing, it may have an important role in maintaining the utility of that kind of statutory design going forward.

V. Statutory Realism, Second Generation Textualism, and the Return of Legal Process

Finally, there is a lot in Maine Community for statutory interpretation aficionados. At the most basic level, the case is a near re-run of one of the most famous statutory interpretation chestnuts, Tennessee Valley Authority v. Hill (TVA), decided forty-two years ago.[82] In TVA, the Court refused to allow an appropriation for the Tellico Dam in Tennessee to implicitly override an earlier enacted provision in the Endangered Species Act that would have prevented the construction of the dam because it destroyed the habitat of the endangered snail darter fish. The Court applied the “cardinal rule that repeals by implication are not favored,”[83] the same presumption it repeated in Maine Community.[84]

At a broader level, in exemplifying sophisticated textualism, the opinion provides further evidence of Justice Scalia’s enduring influence on the Court, even with the most liberal justices. But it also pries open a crack for new debates, especially new debates about respecting Congress and statutory interpretation in the shadow of how Congress actually drafts.

For the textualists, Justice Sotomayor’s analysis begins by emphasizing the mandatory words “shall pay” as the strongest evidence of Congress’s “plain command”[85] and creation of an obligation.[86] She relies on a canon of interpretation (the no-repeals-by-implication canon, one of Justice Scalia’s “approved” canons[87]) rather than legislative history.[88] She also relies on textualist evidence elsewhere in the U.S. Code, specifically the fact that where Congress elsewhere has conditioned obligations subject to appropriations, it has expressly said so.[89] Justice Sotomayor—herself the Court’s most prominent proponent of legislative history use[90]—deftly cabins her discussion of legislative history to the final part of the opinion, thereby allowing Justices Clarence Thomas and Neil Gorsuch to join all but the final part.[91] This has become a typical line to walk for even the Court’s more methodologically liberal justices when writing opinions.

Justice Samuel Alito’s lone dissent is highly textualist, too. Justice Alito assumed for purposes of his argument that the ACA created an obligation to pay, but took issue with the idea that there was an implied right of action for the insurers to sue for it.[92] In support of his argument, he picked up a theme sounded by Justice Scalia in later years, aligning the rise of textualism with new, narrower approaches to implied rights of action. Justice Alito argued that the Court has “basically gotten out of the business of recognizing private rights of action not expressly created by Congress,”[93] and would have requested supplemental briefing on that question.

But Justice Sotomayor also pushed beyond text to look at Congress’s own internal materials. Specifically, she looked to the GAO handbook, known as the Red Book, for the propositions that Congress can “incur obligations in advance of appropriations,” that the “GAO shares [the] view” adopted by the Court that “Congress can create an obligation directly by statute,”[94] that Congress “has at its disposal several blueprints for conditioning and limiting obligations,”[95] and in support of the presumption against implied repeals.[96] She also cited to the CBO’s understanding of the statute as not requiring the risk corridor program to be neutral.[97]

My own earlier empirical work with Professor Lisa Bressman,[103] and my more recent work on the “congressional bureaucracy” with Professor Jesse Cross[104] deepens the argument for reliance on Congress’s own materials—especially when faced with a choice between those materials and the Court’s interpretive presumptions about congressional drafting that, it turns out, Congress often either does not know or rejects as inaccurate.[105] Congress relies on its own materials and the assumptions underlying them in drafting and understanding legislation. These materials are objective, typically nonpartisan, outputs authorized ex ante by Congress as a collective body through formal action (usually rules or statutes establishing the offices and their duties), and so might be acceptable even to judges who generally object to legislative history. For instance, the CBO score is statutorily required by Congress ex ante, calculated by a nonpartisan office based on a transparent methodology and published. Statutory language is iteratively adjusted in reaction to scoring;[106] the same goes for revenue estimates issued by the Joint Committee on Taxation.[107] Parliamentary rulings are based on Congress’s internal precedents; the words of legislation are “sliced” and “diced” pursuant to these procedures to come within the jurisdiction of certain congressional committees.[108]

Some academics have opposed this broadening of the interpretive lens.[109] They argue that Congress is fundamentally inscrutable and cannot operate collectively. Indeed, that cynicism about Congress, and the perception of it as an irrational body that courts can never hope to understand, is what gave rise to textualism in the first place.[110]

But even some textualist justices have started to cite Congress’s materials. The GAO Red Book was cited only one other time in the past decade before Maine Community;[111] CBO has been referenced just five times, two of them in the context of the ACA.[112] Justice Anthony Kennedy and Justice Alito have cited Congress’s own drafting manuals,[113] and Justice Brett Kavanaugh has relied on empirical studies about the realities of congressional drafting.[114] It seems notable that, although Justice Sotomayor in Maine Community had reason to separate out the legislative history section of the opinion to allow Justices Thomas and Gorsuch to easily opt-out of that part of the opinion, she did not need to separate out the citation of the GAO Red Book or CBO assumptions to keep the Court’s textualists in the majority.

Even Maine Community’s use of the no-repeals-by-implication canon is legislatively realist. The Court agreed with the insurers that the presumption has special weight in the context of appropriations.[115] The Court emphasized Congress’s own internal rules (something it rarely does) prohibiting substantive legislating through appropriations and agreed with the impracticability of requiring members of Congress “to review exhaustively the background of every authorization before voting on an appropriation.”[116] It agreed with petitioners that:

[U]nlike substantive provisions in authorizing legislation, appropriations measures have the limited and specific purpose of providing funds for authorized programs. As such, lawmakers voting on them are entitled to operate under the assumption that they will be interpreted as addressing how to pay for authorized programs, rather than reopening or revisiting the underlying authorization itself. . . . Without that limiting principle, authorizing committees and appropriations committees would be in constant battle.[117]

It also agreed with amici that: “Appropriations measures are massive documents that must be passed on a regular basis; it would be absurd if Members of Congress had to review exhaustively the background of every authorization before voting on an appropriation, to make sure it does not implicitly change preexisting law.”[118]

Even so, the Court did leave the door open to limited situations in which an express revocation of the obligation or the imposition of a new formula incompatible with the obligation might be sufficient.[119]

I would like to think the opinion reveals the Court to be signaling a possible second- generation of textualism—one hinted at in King and now built upon in Maine Community. A textualist approach that is more realist about how Congress works is one that is more respectful of Congress and more consistent with an enterprise—statutory interpretation—grounded in legislative supremacy Whispers of the pre-textualist Legal Process school grow louder: The legislature is reasonable and can be understood, and the Court’s role is to cooperate, not erect obstacles. It does not seem to be a coincidence that Chief Justice Roberts in King cited Legal Process titan Justice Felix Frankfurter twice, in pledging the Court would “do [its] best” to “respect” “the legislative plan.”[120] That these whispers have grown louder thanks to the questions pressed by the ACA—a once-in-a-generation transformational statute—makes them all the more exciting.

***

A modern interpretive approach might meet Justices Scalia and Frankfurter somewhere in in the middle. Only time will tell. Maine Community is, of course, about a lot more than statutory interpretation. It’s the sleeper case that really isn’t. It importantly clarifies Congress’s obligations to private implementers. It resists ACA sabotage and so furthers ACA depoliticization and entrenchment. It models an interpretive approach that is still textualist but also realist, and better suited to the complexity of today’s statutes. And it puts on full display how, even after a decade, the ACA continues to offer a buffet of new legal questions and continues to push the courts for new answers.

[*] Professor of Law and Faculty Director, Solomon Center for Health Law and Policy, Yale Law School. Thanks to Tim Jost, Mark Regan, Steven Schwinn, and Erica Turret, and to Deepen Gagneja, Bardia Vaseghi, and Emily Caputo for excellent research assistance

[2] Paul Clement, The ACA and the Courts: Two Perspectives, Part Two, in The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America 179 (Ezekiel J. Emanuel & Abbe R. Gluck eds., 2020).

[3] Two of the fifty-eight cases that were pending when the case was decided are class actions.

[4] Me. Cmty. Health Options v. United States,140 S. Ct. 1308 (2020). The sixth Affordable Care Act (ACA) case—Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020)—was decided in July 2020, also in the 2019 Term.

[5] See Me. Cmty. Health Options, 140 S. Ct. at 1315.

[6] Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113–235, § 227, 128 Stat. 2130, 2491 (“None of the funds made available by this Act from [CMS trust funds], or transferred from other accounts funded by this Act to the ‘Centers for Medicare and Medicaid Services—Program Management’ account, may be used for payments under section 1342(b)(1) of Public Law 111–148 [i.e., 42 U.S.C. 18062(b)(1)] (relating to risk corridors).”); see Consolidated Appropriations Act, 2017, Pub. L. No. 115–31, § 223, 131 Stat. 135, 543; Consolidated Appropriations Act, 2016, Pub. L. No. 114–113, § 225, 129 Stat. 2242, 2624.

[7] Me. Cmty Health Options, 140 S. Ct. at 1318.

[8] See Abbe R. Gluck & Thomas Scott-Railton, Affordable Care Act Entrenchment, 108 Geo. L.J. 495, 503–14 (2020).

[9] See Edward R. Berchick, Jessica C. Barnett & Rachel D. Upton, U.S. Census Bureau, U.S. Dep’t of Commerce, Health Insurance Coverage in the United States: 2018 3 tbl.1 (2019) (finding that 55.1% of Americans received insurance through an employment-based plan in 2018, and that 67.3% did through any private plan); Jonathan Gruber, The Tax Exclusion for Employer-Sponsored Health Insurance 25 tbl.1 (Nat’l Bureau of Econ. Research, Working Paper No. 15,766, 2010) (finding that 67.5% of non-elderly Americans in 2008 received insurance through the private insurance system).

[10] See, e.g., John E. McDonough, Inside National Health Reform 287 (2011) (noting that “[t]here was a better national health reform law to be written than the Affordable Care Act,” but concluding that it was the best reform that could have been achieved at the time).

[11] See Gluck & Scott-Railton, supra note 7, at 513.

[12] Patient Protection and Affordable Care Act, Pub. L. No. 111–148, §§ 1001(5), 1201(2)(A), 124 Stat. 119, 131, 154 (2010) (codified at 42 U.S.C. §§ 300gg-3, -12).

[13] Id. § 1001(5) (codified at 42 U.S.C. §§ 300gg-11, -13).

[14] Id. § 1302 (codified at 42 U.S.C. § 18022).

[15] Id. § 1342 (codified at 42 U.S.C. § 18062) (in effect for plan years 2014, 2015, and 2016).

[16] Id. § 1343 (codified at 42 U.S.C. § 18063).

[17] Id. § 1341 (codified at 42 U.S.C. § 18061).

[18] Id. § 1402 (codified at 42 U.S.C. § 18071).

[20] Specifically, four justices sustained the mandate as a valid exercise of the commerce power and Chief Justice Roberts provided a fifth vote for the mandate’s constitutionality by finding it authorized under the taxing power. Seven justices struck down the mandatory Medicaid expansion as coercive on the states, effectively rendering Medicaid expansion optional. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 561, 574, 575–86, 589 (2012).

[21] See, e.g., King v. Burwell, 576 U.S. 473 (2015) (filed following the loss in NFIB and challenging the ACA’s subsidy structure).

[22] Janet Kinzer & Annie L. Mach, Cong. Research Serv., RL45244, Legislative Actions to Modify the Affordable Care Act in the 111th-115th Congresses 20 (2018).

[23] See Kathleen Sebelius & Nancy-Ann DeParle, Present at the Creation: Implementation of the Affordable Care Act, 2010 to 2014, in The Trillion Dollar Revolution, supra note 1; Jason Millman, Following Sebelius Phone Call, Foundation Donated $13M to Obamacare Outreach Group, Report Says, Wash. Post (Apr. 21, 2014); Sarah Kliff, Budget Request Denied, Sebelius Turns to Health Executives to Finance Obamacare, Wash. Post (May 10, 2013).

[24] See Jonathan Weisman & Jeremy W. Peters, Government Shuts Down in Budget Impasse, N.Y. Times (Sept. 30, 2013).

[25] The CSRs, which are in section 1402 of the ACA, are programmatically linked to the premium tax credits (the subsidies that lower premiums for marketplace coverage), which are found in section 1401. Patient Protection and Affordable Care Act, Pub. L. No. 111–148, § 1401, 124 Stat. 119, 213 (2010) (codified at 26 U.S.C. § 36B (2018)). Premium tax credits, however, are paid from a Treasury fund whose governing statute expressly mentions them but does not mention CSRs. 31 U.S.C. § 1324(b)(2) (2018). In 2014, the Obama administration made a request for a specific appropriation, Congress refused, and the administration made the payment from the Treasury fund. Doug Badger, Panic Prompted ObamaCare Lawlessness, Hill (July 15, 2016). The House sued, claiming that disbursing CSRs absent a specific appropriation violated the Appropriations Clause. Complaint at 2, U.S. House of Representatives v. Burwell, 185 F. Supp. 3d 165 (D.D.C. 2016) (“Defendants . . . have violated, and are continuing to violate, the Constitution by directing, paying, and continuing to pay, public funds to certain insurance companies to implement a program authorized by the ACA, but for which no funds have been appropriated.”). A lower federal court ruled that the House had standing to pursue an Appropriations Clause claim—a ruling that broke new ground given the Supreme Court’s historically narrow approach to the question of legislator standing. U.S. House of Representatives v. Burwell, 130 F. Supp. 3d 53, 58 (D.D.C. 2015). In a subsequent order, the district court found that there was no express appropriation supporting the CSR payments and enjoined further payments from being made, but stayed the order pending appeal. Burwell, 185 F. Supp. 3d at 168.

[26] See Notice at 1–2, U.S. House of Representatives v. Hargan, No. 16–5202 (D.C. Cir. Oct. 13, 2017); Settlement Agreement at 2, U.S. House of Representatives v. Hargan, No. 1:14-cv-01967-RMC (D.D.C. Dec. 15, 2017); see also Timothy Jost, Administration’s Ending of Cost-Sharing Reduction Payments Likely to Roil Individual Markets, Health Aff. Blog (Oct. 13, 2017) (recording that, on October 12, 2017, “the White House press office announced that the administration will no longer be reimbursing insurers for the cost-sharing reductions they are legally required to make for low-income individuals”).

[27] Katie Keith, Insurers Ask for More than $2 Billion in Unpaid CSRs, Health Aff. Blog (Mar. 6, 2019).

[28] Sanford Health Plan v. United States, No. 2019–1290, 2020 WL 4723703 (Fed. Cir. Aug. 14, 2020); see Cmty. Health Choice, Inc. v. United States, No. 2019–1633, 2020 WL 4723757 (Fed. Cir. Aug. 14, 2020); Katie Keith, Federal Circuit: Insurers Owed Unpaid Cost-Sharing Reductions, Reduced by Higher Premium Tax Credits from Silver Loading, Health Aff. Blog (Aug. 17, 2020).

[29] Patient Protection and Affordable Care Act § 1342(a).

[30] Id. § 1342(b)(1)(A)–(b)(2)(A).

[31] President Barack Obama, Remarks in Town Hall Meeting on Health Care in Green Bay, Wisconsin (June 11, 2009).

[32] Gary Cohen, Letter to State Insurance Commissioners, Ctrs. for Medicare & Medicaid Servs. (Nov. 14, 2013).

[33] See Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for

2014, 78 Fed. Reg. 15,410 (Mar. 11, 2013) (codified at 45 C.F.R. pts. 153, 155, 156‒58).

[34] See, e.g., Robert Pear, Marco Rubio Quietly Undermines Affordable Care Act, N.Y. Times (Dec. 9, 2015).

[35] See Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113–235, § 227, 128 Stat. 2130, 2491 (“None of the funds made available by this Act from [CMS trust funds], or transferred from other accounts funded by this Act to the ‘Centers for Medicare and Medicaid Services—Program Management’ account, may be used for payments under section 1342(b)(1) of Public Law 111–148 [i.e., 42 U.S.C. 18062(b)(1)] (relating to risk corridors).”).

[36] See Brief for Petitioners at 27‒30, Moda Health Plan, Inc. v. United States, No. 18–1028 (Aug. 30, 2019), 2019 WL 4235524.

[37] See Brief for Respondent at 19, Me. Cmty. Health Options v. United States, 140 S. Ct. 1308 (2020) (No. 18–1023); see also id. at 51 n.10 (elaborating on the argument and responding to petitioners’ contentions).

[38] See Moda Health Plan, Inc. v. United States, 892 F.3d 1311, 1320, 1324–29 (Fed. Cir. 2018), cert. granted, 139 S. Ct. 2743 (2019) (mem.), argued, No. 18–1028 (Dec. 10, 2019); see also Land of Lincoln Mut. Health Ins. Co. v. United States, 892 F.3d 1184 (Fed. Cir. 2018), cert. granted, 139 S. Ct. 2744 (2019) (mem.), argued, No. 18–1038 (Dec. 10, 2019).

[40] See Nicholas Bagley, Trouble on the Exchanges—Does the United States Owe Billions to Health Insurers?, 375 New Eng. J. Med. 2017, 2018 (2016) (“The inability to make full risk-corridor payments devastated some insurers. Hit particularly hard were the new cooperative health plans, which were established with the support of generous ACA loans. By the end of summer 2016, just 7 of 23 co-ops were still in business.”).

[41] See id. (“As the co-ops collapsed, almost a million people were forced to look elsewhere for coverage.”); Sally Pipes, Obamacare’s Co-Op Disaster: Only 7 Remain, Forbes (July 25, 2016); see also Brief of 24 States and the District of Columbia as Amici Curiae Supporting Petitioners at 14, Me. Cmty. Health Options, 140 S. Ct. 1308 (Nos. 18–1023) (“When Land of Lincoln was liquidated, nearly 50,000 Illinois residents lost their health insurance in the middle of the 2016 plan year.”).

[42] See Daniel W. Sacks, Khoa Vu, Tsan-Yao Huang & Pinar Karaca-Mandic, How Do Insurance Firms Respond to Financial Risk Sharing Regulations? Evidence from the Affordable Care Act 4‒5 (Nat’l Bureau of Econ. Research, Working Paper No. 24129, 2017) (finding the evidence to imply that “ending the [Risk Corridor] program account[ed] for 86 percent of all premium growth between 2015 and 2017,” and finding that “[i]n 2016 . . . premiums rose by 9 percent” and “[i]n 2017, premiums rose a further 25 percent”).

[43] Petition for Writ of Certiorari at i, Moda Health Plan, Inc. v. United States, No. 18–1028 (Feb. 4, 2019).

[44] See Me. Cmty. Health Options, 140 S. Ct. at 1318 n.3 (“The Judgment Fund is a permanent and indefinite appropriation for ‘[n]ecessary amounts . . . to pay final judgments, awards, compromise settlements, and interest and costs specified in the judgments or otherwise authorized by law when . . . payment is not otherwise provided for.’” (citing 31 U.S.C. §1304(a)(1))).

[45] See Gluck & Scott-Railton, supra note 7, at 572–78.

[46] Many then secretly cooperated with the Obama administration behind the scenes. See Abbe R. Gluck & Nicole Huberfeld, What is Federalism in Healthcare For?, 70 Stan. L. Rev. 1689, 1770–72 (2018).

[47] Gluck, Regan & Turret, supra note 18, at 1478. Fourteen states sued on the day of enactment.

[48] See Kate Zernike, Tea Party Set to Win Enough Races for Wide Influence, N.Y. Times (Oct. 14, 2010).

[49] See Weisman & Peters, supra note 23.

[50] Sean Sullivan, Schumer: Democrats “Blew” Opportunity by Focusing on “Wrong Problem”–Health Care, Wash. Post (Nov. 25, 2014).

[51] Scott Pelley, Trump Gets Down to Business on 60 Minutes, CBS News (Sept. 27, 2015).

[52] Eric Cantor, The ACA and the Republican Alternative, in The Trillion Dollar Revolution, supra note 1, at 139.

[53] See Abbe R. Gluck, Comment, Imperfect Statutes, Imperfect Courts: Understanding Congress’s Plan in the Era of Unorthodox Lawmaking, 129 Harv. L. Rev. 62, 71 (2015); see also Transcript of Oral Argument at 38, Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) (No. 11–393) (“JUSTICE SCALIA: [W]hat happened to the Eighth Amendment? You really want us to go through these 2,700 pages? . . . [D]o you really expect the Court to do that? Or do you expect us to give this function to our law clerks?”).

[54] King v. Burwell, 576 U.S. 473, 498 (2015) (citations omitted).

[55] Id. at 475 (citations omitted).

[56] Id. at 498.

[57] Me. Cmty. Health Options v. United States, 140 S. Ct. 1308, 1332 (2020) (Alito., J., dissenting).

[58] See Brief for Jonathan H. Adler, Nicholas Bagley, Abbe R. Gluck & Ilya Somin as Amici Curiae Supporting Petitioners at 5, California v. Texas, 140 S. Ct. 1262 (2020) (Nos. 19–840, 19–1019); Abbe R. Gluck, Reading the Findings: Textualism, Severability and the ACA’s Return to the Court, 130 Yale L.J.F. (forthcoming 2020) (on file with author).

[59] Brief for Jonathan H. Adler, Nicholas Bagley, Abbe R. Gluck & Ilya Somin, supra note 57; see Brief of States of Ohio and Montana as Amicus Curiae Supporting Neither Party, California, 140 S. Ct. 1262 (Nos. 19–840, 19–1019) (brief from two Republican state attorneys general arguing that the mandate is severable from the rest of the Affordable Care Act); Michael F. Cannon, Obamacare’s Enemy No. 1 Says This Is the Wrong Way to Kill It, Cato Inst. (Mar. 28, 2019); Editorial, Texas ObamaCare Blunder, Wall St. J. (Dec. 16, 2018) (opposing the challenge even though “[n]o one opposes ObamaCare more than we do”).

[60] Gluck, Regan & Turret, supra note 18, at 1485, 1485 n.84; Am. Enter. Inst., Who’s in Charge? More Legal Challenges to the Patient Protection and Affordable Care Act at 1:30:55–1:31:15, YouTube (Mar. 11, 2014) (remarks of Michael Greve at a Dec. 7, 2010 panel).

[61] See, e.g., Gresham v. Azar, 950 F.3d 93 (D.C. Cir. 2020); New York v. U.S. Dep’t of Labor, No. 19–5125 (D.C. Cir. argued Nov. 14, 2019); Stewart v. Azar, 313 F. Supp. 3d 237 (D.D.C. 2018).

[62] Abbe R. Gluck, Our [National] Federalism, 123 Yale L.J. 1996, 2025–26 (2014) (compiling conflicting case law from the lower courts); see also Abbe R. Gluck, Intrastatutory Federalism and Statutory Interpretation: State Implementation of Federal Law in Health Reform and Beyond, 121 Yale L.J. 534, 610‒12 (also cataloguing cases).

[63] Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 585 (2012) (“We have no need to fix a line [here]. It is enough for today that wherever that line may be, this statute is surely beyond it. Congress may not simply ‘conscript state [agencies] into the national bureaucratic army,’ and that is what it is attempting to do with the Medicaid expansion.” (citations omitted)).

[64] Transcript of Oral Argument at 58, Me. Cmty. Health Options v. United States, 140 S. Ct. 1308 (2020) (No. 18–1023).

[65] Id. at 32–33.

[66] Id. at 37–38, 53–54.

[67] Me. Cmty. Health Options, 140 S. Ct. at 1331 n.15.

[68] Id. at 1331 (quoting Alexander Hamilton, Report Relative to a Provision for the Support of Public Credit (Jan. 9, 1790), in 6 Papers of Alexander Hamilton 68 (H. Syrett & J. Cooke eds., 1962)).

[69] Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 908, 937 n.109 (2013) [hereinafter Gluck & Bressman, Part I]; Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part II, 66 Stan. L. Rev. 725, 760‒63 (2014) [hereinafter Gluck & Bressman, Part II].

[70] Me. Cmty. Health Options, 140 S. Ct. at 1320 (citations omitted) (emphasis added).

[71] For an excellent summary of all these cases and their procedural postures, see Katie Keith, Federal Circuit Hears Oral Argument Over Unpaid CSRs, Health Aff. Blog (Jan. 15, 2020).

[72] Sanford Health Plan v. United States, No. 2019–1290, 2020 WL 4723703, at *1 (Fed. Cir. Aug. 14, 2020); see Cmty. Health Choice, Inc. v. United States, No. 2019–1633, 2020 WL 4723757, at *1 (Fed. Cir. Aug. 14, 2020).

[73] David Super, The Court Acts to Tame Government Shutdown, Balkinization (Apr. 28, 2020, 12:46 AM).

[74] Id.

[75] Me. Cmty. Health Options, 140 S. Ct. at 1327 (citing 28 U.S.C. § 1491(a)(1)).

[76] Id. at 1328.

[77] Id.

[78] The Court detailed two exceptions which it held did not apply here: where the Administrative Procedure Act (APA) provides relief or where the statute itself provides its own remedies. Id.

[79] See, e.g., Tovar v. Essentia Health, 342 F. Supp. 3d 947, 956 (D. Minn. 2018); Boyden v. Conlin, 341 F. Supp. 3d 979, 998 (W.D. Wis. 2018); Franciscan All., Inc. v. Burwell, 227 F. Supp. 3d 660, 670 (N.D. Tex. 2016). Section 1557 cases challenging discrimination against transgender people include: Flack v. Wisconsin Department of Health Services, 395 F. Supp. 3d 1001 (W.D. Wis. 2019) (concerning the failure by the Medicaid program to provide appropriate treatment for gender dysphoria); Edmo v. Idaho Department of Correction, 358 F. Supp. 3d 1103 (D. Idaho 2018) (concerning an inmate seeking gender confirmation surgery), aff’d in part, rev’d in part sub nom.; Edmo v. Corizon, Inc., 935 F.3d 757 (9th Cir. 2019); Prescott v. Rady Children’s Hospital, 265 F. Supp. 3d 1090 (S.D. Cal. 2017) (concerning the failure by a hospital to provide appropriate treatment for gender dysphoria); and Rumble v. Fairview Health Services, No. 14-cv-2037, 2015 WL 1197415 (D. Minn. Mar. 16, 2015).

[80] See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012).

[81] Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020); Zubik v. Burwell, 136 S. Ct. 1557 (2016); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).

[82] Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978).

[83] Id. at 189 (internal ellipses omitted) (quoting Morton v. Mancari, 417 U.S. 535, 549 (1974)).

[84] Me. Cmty. Health Options v. United States, 140 S. Ct. 1308, 1323 (2020).

[85] Id. at 1321 (“Thus, without ‘any indication’ that § 1342 allows the Government to lessen its obligation, we must ‘give effect to [Section 1342’s] plain command.’” (quoting Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998)).

[86] Id. at 1320 (“‘[S]hall’ typically ‘creates an obligation impervious to . . . discretion.’ . . . Section 1342 uses the command three times” (citing Lexecon, 523 U.S. at 35)).

[87] Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 327 (2012).

[88] Me. Cmty. Health Options, 140 S. Ct. at 1323‒25.

[89] Id. at 1322 n.7, 1323 (“This Court generally presumes that ‘when Congress includes particular language in one section of a statute but omits it in another,’ Congress ‘intended a difference in meaning.’ . . . The ‘subject to appropriations’ and payment-capping language in other sections of the Affordable Care Act would be meaningless had § 1342 simultaneously achieved the same end with silence.” (citations omitted)).

[90] Dig. Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 782‒83 (2018) (Sotomayor, J., concurring).

[91] Me. Cmty. Health Options, 140 S. Ct. at 1331.

[92] Id. at 1331–35 (Alito, J., dissenting).

[93] Id. at 1331.

[94] Id. at 1319‒20.

[95] Id. at 1329.

[96] Id. at 1323–24.

[97] Id. at 1316 (citing Congressional Budget Office, The Budget and Economic Outlook: 2014 to 2024 59 (2014)).

[98] King v. Burwell, 576 U.S. 473, 491–92 (2015) (“The Affordable Care Act contains more than a few examples of inartful drafting. . . . Congress wrote key parts of the Act behind closed doors, rather than through ‘the traditional legislative process.’ . . . Anyway, we ‘must do our best . . . .’”) (internal citations omitted); Gluck, supra note 52, at 96–97.

[99] Abbe Gluck, The “CBO Canon” and the Debate Over Tax Credits on Federally Operated Health Insurance Exchanges, Balkinization (July 12, 2012).

[100] Id.

[101] See, e.g., Jonathan S. Gould, Law Within Congress, 129 Yale L.J. 1946, 2021‒20 (2020) (arguing for a Parliamentarian’s canon); Clint Wallace, Congressional Control of Tax Rulemaking, 70 Tax L. Rev. 179, 183‒84 (2017) (arguing for a Joint Committee on Taxation canon); Daniel Listwa, Comment, Uncovering the Codifier’s Canon: How Codification Informs Interpretation, 127 Yale L.J. 464, 465‒66 (2017) (arguing for a codifier’s canon).

[102] King, 576 U.S. at 500, 517 (Scalia, J., dissenting). Ironically, it was actually in the NFIB joint dissent that members of the Court (including Justice Scalia) for the first time argued that different interpretive rules might apply to different types of statutory vehicles. Specifically, the joint dissent proposed special severability rules for omnibus laws. The joint dissent wrote:

The Court has not previously had occasion to consider severability in the context of an omnibus enactment like the ACA, which includes not only many provisions that are ancillary to its central provisions but also many that are entirely unrelated—hitched on because it was a quick way to get them passed despite opposition, or because their proponents could exact their enactment as the quid pro quo for their needed support. When we are confronted with such a so-called “Christmas tree,” a law to which many nongermane ornaments have been attached, we think the proper rule must be that when the tree no longer exists the ornaments are superfluous.

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 705 (2012) (Scalia, Kennedy, Thomas & Alito, JJ., dissenting). Although I admire the attempt to think about different types of statutes, this particular new-rule formulation is not well-grounded in the empirics of Congress’s operations, nor does it rely on Congress’s own materials.

[103] Gluck & Bressman, Part I, supra note 68; Gluck & Bressman, Part II, supra note 68.

[104] Abbe R. Gluck & Jesse M. Cross, The Congressional Bureaucracy, 168 U. Pa. L. Rev. (forthcoming).

[105] While these arguments are beyond the scope of this piece, the Court consistently justifies the canons on the ground they are tethered to Congress—not as freestanding rules of federal common law—so it is on that ground that they should be judged.

[106] See Gluck & Bressman, Part II, supra note 68, at 763‒64.

[107] Gluck & Cross, supra note 103.

[108] Id.; see Gould, supra note 100, at 1969‒71 (discussing the importance of the Parliamentarian in making committee referrals for bills).

[109] See Ryan D. Doerfler, Who Cares How Congress Really Works?, 66 Duke L.J. 979, 985–86 (2017); John F. Manning, Inside Congress’s Mind, 115 Colum. L. Rev. 1911, 1918‒19 (2015).

[110] Gluck, supra note 52, at 80, 82‒84.

[111] See Salazar v. Ramah Navajo Chapter, 567 U.S. 182 (2012)(citing GAO in both majority and dissent).

[112] In addition to NFIB, Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 729 (2014), referenced the Congressional Budget Office (CBO), as did Department of Homeland Security v. Thuraissigiam, 140 S. Ct. 1959, 1966 n.9 (2020), Murphy v. National Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1484 (2018), and PLIVA, Inc. v. Mensing, 564 U.S. 604, 629 & 629 n.2 (2011).

[113] See Carr v. United States, 560 U.S. 438, 463 (2010) (Alito, J., dissenting); United States v. O’Brien, 560 U.S. 218, 233‒34 (2010).

[114] Barton v. Barr, 140 S. Ct. 1442, 1453 (2020) (“[R]edundancies are common in statutory drafting—sometimes in a congressional effort to be doubly sure, sometimes because of congressional inadvertence or lack of foresight, or sometimes simply because of the shortcomings of human communication.”). Here, Justice Kavanaugh is building on his reliance on empirical studies in Loving v. IRS, 742 F.3d 1013, 1019 (D.C. Cir. 2014) (“And more broadly, lawmakers, like Shakespeare characters, sometimes employ overlap or redundancy so as to remove any doubt and make doubly sure.” (citing Gluck & Bressman, Part I, supra note 68, at 934–35)).

[115] Me. Cmty. Health Options v. United States, 140 S. Ct. 1308, 1323 (2020); see Brief for Petitioners at 22‒23, 41‒43, Me. Cmty. Health Options, 140 S. Ct. 1308 (No. 18–1023), 2019 WL 4167073; Petition for Writ of Certiorari at 17‒18, 22, 26‒27, 34, Me. Cmty. Health Options, 140 S. Ct. 1308 (No. 18–1023), 2019 WL 48127455.

[116] Brief for Petitioner Land of Lincoln at 36, Me. Cmty. Health Options, 140 S. Ct. 1308 (No. 18–1023), 2019 WL 4235523; see also Brief for the Chamber of Commerce of the United States of America as Amicus Curiae in Support of Petitioners at 9, Moda Health Plan, Inc. v. United States, 140 S. Ct. 1308 (2020) (No. 18–1028), 2019 WL 4273836 (“[C]ongress’[s] operating rules dictate that appropriations bills may not change existing law.” ((citing Tenn. Valley Auth. v. Hill, 437 U.S. 153, 190‒91 (1978) ((citing House Rule XXI(2); Rule 16.4 of the Standing Rules of the Senate))).

[117] Brief for Petitioners at 28‒29, Moda Health Plan Inc., 140 S. Ct. 1308 (No. 18–1028), 2019 WL 4235524 (internal quotation marks and citations omitted).

[118] Brief of the Association for Community Affiliated Plans as Amicus Curiae Supporting Petitioners and Reversal at 5‒6, Me. Cmty. Health Options, 140 S. Ct. 1308 (Nos. 18–1023) (internal quotation marks and citations omitted).

[119] Me. Cmty. Health Options, 140 S. Ct. at 1325–26.

[120] King v. Burwell, 576 U.S. 473, 475, 498 (2015) (citations omitted).