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Plaintiff's Supply in Support of the Summary Judgment

Legal Briefs

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Plaintiff's Supply in Support of the Summary Judgment

No legitimate method of statutory construction would interpret the phrase “established by the State” in the ACA’s subsidy provisions to mean “established by the State or the federal government.” The Act expressly contemplates both state-established and federally established Exchanges; where it specifically refers to one type or the other, the courts must give effect to that language. The Government’s sole textual hook for the IRS Rule is its backwards claim that the Act, by directing the HHS Secretary to establish “such Exchange” if a state failed to, creates a “legal fiction” by which states are “deemed” to have established the HHS-established Exchanges,
even though it is a state’s failure to establish an Exchange that triggers the Secretary’s obligation in the first place, and even though Congress demonstrably knew how to expressly “deem” other Exchanges to be state-established when it wanted to, as it did for territorial Exchanges.