The following is a guest post by Graham Katz. It makes an interesting point (which I haven't seen elsewhere) about the phrase that's at the center of King v. Burwell: "an Exchange established by the State".
Today the Supreme Court hears argument on the King v. Burwell case challenging the subsidies for health insurance put in place by the Affordable Care Act (or "Obamacare"). At issue in today's argument is the interpretation of a part of the law which specifies the premium subsidies that are crucial to making health insurance affordable to lower income Americans. This part is section 1401(b):
In General- In the case of an applicable taxpayer, there shall be allowed as a credit against the tax imposed by this subtitle for any taxable year an amount equal to the premium assistance credit amount of the taxpayer for the taxable year.
(2) PREMIUM ASSISTANCE AMOUNT- The premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of–
(A) the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act, or
(B) the excess (if any) of–
(i) the adjusted monthly premium for such month for the applicable second lowest cost silver plan with respect to the taxpayer, over
(ii) an amount equal to 1/12 of the product of the applicable percentage and the taxpayer’s household income for the taxable year.
Although states are required by the law to establish an Exchange for residents to use, many did not. The law anticipates this and allows for the federal government to set up and run an exchange in its stead.
The plaintiffs argue that subsidies are restricted by the phrase "an Exchange established by the State" to taxpayers in those states that set up their own exchange (California, New York, …) and are not available to taxpayers who use the HealthCare.gov exchanges run by the federal government. Why else would Congress use this phrase, argue the plaintiffs, if not to distinguish federal from state exchanges?
There are many legal issues at play in this argument, but there are also important linguistic issues. For example, does a state "establish" an exchange by failing to act and thereby triggering the creation of the exchange by the federal government?
While the lexical semantics of this verb can be debated, there is little room for debate over the meaning of the definite article "the." Semanticists agree that definites are used in one of two ways: to specify the (contextually restricted) uniqueness of a referent (there is presumed to be exactly one PPACA, exactly one applicable second lowest cost silver plan, etc.) OR to anaphorically to refer back to a previously introduced discourse element. (Some have argued that these are two aspects of a univocal meaning, but the present point is only that there are two interpretations, whatever their source.)
In the phrase "an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act" the definite expression "the State" is used anaphorically. Its antecedent is the phrase "a State" in "health plans offered in the individual market within a State." The anaphoric relation enforces a legal requirement that the state that the health plans plans are offered in be the same state as that which set up the enrolling Exchange. These are the kind of anaphoric uses of definites that launched the Discourse Representation revolution of the early '80s, which provided an compelling account of both anaphoric interpretations of defnite expressions and the contextual variability of interpretation of indefinites. In short, indefinites introduce novel discourse referents which may be bound by discourse-level operators, while definites refer to already introduced discourse referents.
The anaphoric relation induced by the use of the definite creates an important requirement. If an indefinite had been used instead (or, as some have suggested, the disjunct "…or the federal government"), the required relationship between the health-plan offering State and constraints on its Exchange would be broken. A plan could be offered in one state and (theoretically) enrolled in by an exchange set up by another. In fact, each of the eight uses of the phrase "an Exchange established by the State…" in the ACA involves such an anphoric use
— this is clearly the idiom favored by Congress to set up this kind of linked requirement. Here are some (simplified) examples:
"In the event that allotments .. are insufficient to provide coverage to all children who are eligible to be targeted low-income children under the State child health plan … a State shall establish procedures to ensure that such children are provided coverage through an Exchange established by the State …"
"A State shall establish procedures for … enrolling, without any further determination by the State ,.. individuals who are identified by an Exchange established by the State … as being eligible for … assistance"
"With respect to each State, the Secretary … shall review the benefits offered for children … offered through an Exchange established by the State …and shall certify those plans .. offer benefits … at least comparable to the benefits offered .. under the State child health plan."
This required anaphoric relation — specifying, for example, that the state establishing procedures for ensuring childhood coverage is the state whose exchange is providing coverage – makes a crucial contribution to the meaning of the statute, and provides a rationale for the inclusion of the phrase "…established by the State…" in these eight passages in the statute. The phrase "an Exchange established by the the State under section 1311 " is not contrasted with "an Exchange established by the Federal Government under section 1321" but in contrast to the bare "an Exchange established under section 1311…", which would have failed to make explicit the link between the Exchange and the State. Leaving out "the State" would have allowed for situations in which, for example, New Mexico could claim to satisfy the child health benefits requirement by pointing to benefits offered on the California exchange.
The participle "established" came along for the ride. But the crucial thing was that a relation should be set up between an Exchange and a (previously mentioned) State.
The above is a guest post by Graham Katz.