Affordable Care Act Lawsuit – October 4 Reply Memorandum in Support of Plaintiffs’ Motion for Preliminary Injunction and/or Summary Judgment

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At long last, the Government has filed a brief defending the IRS Rule on the merits. (Dkt. No. 38, “PI Opp.”) And, in view of that defense, it is not surprising that the Government has tried for months to avoid airing it publicly. The Government’s sole textual argument for interpreting “established by the State” to mean “established by the federal government” is this: Because the ACA directs states to establish Exchanges, and directs the federal government to establish “such” Exchanges if states fail to do so, then the federally established Exchanges are, paradoxically, “established by the State.” Because that claim is so clearly contrary to the English language, the Government devotes most of its brief to suggesting that absurd consequences would result if the Court refuses to rewrite the ACA’s text. But many of these are not absurd at all (or even surprising); and the rest are not consequences of Plaintiffs’ position.