Halbig v. Burwell, Amici Curiae Brief, U.S. Court of Appeals for the District of Columbia Circuit, Harvard Law School Center for Health Law and Policy Innovation et al (2014)

This amicus brief was filed by a number of HIV policy and advocacy organizations asking the en banc U.S. Court of Appeals for the D.C. Circuit to overturn the ruling of a three judge panel of that court in the case Halbig v Burwell.

Halbig v. Burwell is a lawsuit challenging the legality of an IRS rule authorizing tax credits for the purchase of health insurance in federal exchanges under the Affordable Care Act (ACA).

The plaintiffs claim the IRS has exceeded its statutory authority by authorizing tax credits and cost-sharing subsidies on federal insurance exchanges because the ACA only authorizes tax credits for the purchase of insurance on an exchange “established by the State under Section 1311” which instructs the states to create exchanges.  Federal exchanges are established under Section 1321 of the Act.

In a ruling handed down on July 22, 2014, a three judge panel of the D.C. Circuit concluded that the IRS rule was illegal and contradicted the plain text of the ACA. Should it stand, that ruling would be in conflict with the Fourth Circuit ruling in King v. Burwell, which found that the relevant language of the ACA was ambiguous and the IRS rule represented a reasonable interpretation of the relevant text. A conflict between the two rulings would make a U.S. Supreme Court hearing on the issue a near certainty.

However, the D.C. Circuit voted to rehear Halbig en banc, vacating the initial panel’s judgment. So while the opinions remain in conflict, there are not conflicting appellate court judgments. And if the en banc court overturns the three-judge panel and agrees with the Fourth Circuit, the circuit split will disappear entirely.

Disallowing IRS tax credits and cost sharing subsidies for federal health insurance exchanges under the PPACA would undermine the affordability of health insurance for many low and moderate income people because more than 30 states refused to set up their own exchanges, leaving it up to the federal government to establish them.

Such an outcome would have a significant, adverse impact on people living with HIV and other chronic health conditions who have benefitted tremendously from the ACA’s subsidies, which have enabled them to access affordable and comprehensive health insurance.