King v. Burwell, a Rose is a Rose is a Rose . . .


In response to the government’s merits brief in the case of King v. Burwell, King et al., the petitioners, filed their Reply Brief (PRB.) on February 18th. In their brief, the petitioners declare,

A “failure” to establish the Exchange obviously does
not “fulfil[l]” the “requirement” to establish it; and
an “Exchange established by the State” does not
paradoxically result even when a state exercises its
“flexibility” not to establish it. If anything, § 1321
therefore refutes the claim that an HHS Exchange is
“established by the State.”

[PRB., page 3].

As Maurice F. Baggiano, Esq. uniquely pointed out in his amicus brief, filed on January 28th, the word “establish,” in addition to meaning “to make or create,” also means to “bring about,” i.e., to effect. The petitioners cannot conveniently rely on one meaning of the word “establish,” when it avoids ambiguity in the tax-credit statute, and ignore another meaning of the word “establish,” when it creates ambiguity in the statute.

All of the states knew that they were going to end up with an Exchange one way or another. The Act required this result. Under the Act, the states were not given the option to prohibit Exchanges in their states. The only option available to the states was to decide how to establish Exchanges in their states: on their own or with the help of the Secretary of HHS. This was up to the states to decide, and only the states, not the federal government. So the ball was in each state’s “court” when the time was ripe to decide how to proceed.

If a state did not “establish” (make or create) the required Exchange on its own, the Secretary of HHS set up the Exchange for the state, just as the Act laid out. The state’s inaction brought this result about, as the state knew it would; by definition, therefore, the state “established” the required Exchange with the help of the Secretary of HHS. There is nothing paradoxical about this. Both the wording of the Act and its implementation substantiate not contradict this interpretation of the tax-credit statute.

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