The Volokh Conspiracy

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Supreme Court to hear King v. Burwell challenge to IRS tax credit rule


Friday the Supreme Court granted certiorari in King v. Burwell, one of four pending challenges to the IRS rule authorizing tax credits and cost-sharing subsidies for the purchase of health insurance in federally established exchanges. So the legal case that began with some simple observations about the text of the PPACA and was long dismissed as screwy or insane is going to One First Street.

On Monday, I discussed some of the reasons why the court might grant the case. Among other things, I suspect some of the justices were not convinced that this case was eminently en banc worthy, but not worthy of a cert grant, particularly when, up until this point, it was widely recognized that the issues in these cases should be resolved quickly.

With this grant, the court has the opportunity to reaffirm the principle that the law is what Congress enacts, not what the administration or others wish Congress had enacted with the benefit of hindsight. Granting tax credits to those who need help purchasing health insurance may be a good idea, and may have bipartisan support, but the IRS lacks the authority to authorize such tax credits where Congress failed to do so. The PPACA only authorizes tax credits for the purchase of insurance on exchanges "established by the State."

For more background on this case, and the companion cases, my co-author Michael Cannon has rounded up relevant resources here and here.