[Congressional Record (Bound Edition), Volume 161 (2015), Part 3]
[Senate]
[Pages 3211-3212]
[From the U.S. Government Publishing Office, www.gpo.gov]




                            KING V. BURWELL

  Mr. HATCH. Mr. President, I rise today to discuss a tremendously 
important case that was heard this morning in the Supreme Court. The 
case is King v. Burwell, and it involves the administration of 
ObamaCare. I was privileged to attend the argument.
  The King case is important for a number of reasons. It is important 
because it involves a fundamental component of ObamaCare, and it is 
important because of its significant implications for the rule of law.
  From the early days of the Republic, a core component of our 
constitutional character has been the idea that the government is a 
government of laws and not of men. That means our leaders are 
constrained by the words of the laws in our statutes and in our 
Constitution. Government officials must follow the law even when their 
personal preferences would lead them in a different direction.
  The current administration, however, is engaged in a sustained 
assault on the rule of law. I have spoken many times on the Senate 
floor about the President's disturbing disregard for the separation of 
powers and other limits on his authority. His offenses run the gamut of 
releasing Guantanamo detainees without first notifying Congress, to 
claiming that congressional inaction somehow clothes him with 
legislative-like authority to suspend immigration laws, to arrogating 
to himself the power to determine when Congress is in session. 
President Obama's actions in the King case are of a piece with the 
other Executive overreaches.
  First some background. ObamaCare requires every person in America to 
buy health insurance. This is the so-called individual mandate the 
Supreme Court controversially upheld 3 years ago.
  Most Americans receive health insurance through their employer, which 
pays a large part of the premium, but not all do. Many must purchase 
insurance on their own. And to ensure that such individuals are able to 
comply with the individual mandate, ObamaCare directs States to create 
health care exchanges--government-operated Web sites where consumers 
can go to compare and choose insurance plans. ObamaCare also provides 
subsidies for individuals who purchase insurance through these State-
run exchanges.
  Remember that most people receive health insurance through their 
employer and that their employer pays part of the premium. Individuals 
who purchase insurance on their own through exchanges, however, don't 
receive this employer subsidy, so they themselves must contribute more 
toward the premium. ObamaCare provides subsidies to these individuals 
to help offset the cost of insurance.
  With that background, let me turn now to the legal issue in King. As 
I have described, ObamaCare directs States to establish health care 
exchanges. To be precise, the law says that ``each State shall, not 
later than January 1, 2014, establish an [exchange]'' that meets 
certain conditions set forth in the law. But there is a wrinkle: The 
Constitution does not permit the Federal Government to order States to 
do things. This is called the anticommandeering principle and is well 
established in Supreme Court case law. What the Federal Government can 
do, however, is incentivize States to act, and that is precisely what 
Congress attempted to do with ObamaCare.
  Here is how the incentive works. Another provision of ObamaCare--the 
one at the heart of King--conditions the aforementioned subsidies on an 
individual's enrollment in a State-run exchange. According to this 
provision, a subscriber is eligible for a subsidy for each month she is 
covered by a plan that she ``enrolled in through an Exchange 
established by the State.'' The text of this provision could not be 
more clear. If an individual enrolls in a plan through an exchange 
established by the State, she gets a subsidy; if she enrolls in any 
other plan, no subsidy.
  The incentive for States to act also could not be more clear. If a 
State fails to establish an exchange, its citizens lose out on millions 
of dollars. ObamaCare's proponents quite reasonably thought this would 
lead States to set up exchanges and would thus accomplish the same 
result--the creation of State-run exchanges--that Congress could not 
achieve through a direct command. In fact, I actually heard arguments 
by administration people that if they put enough pressure on the 
States, the States would do this.
  Congress also recognized, however, that some States might not take 
the deal; thus, it provided a backstop. In yet another provision of 
ObamaCare, Congress instructed that if a State does not set up an 
exchange by the January 2014 deadline, the Department of Health and 
Human Services shall ``establish and operate such Exchange within the 
State.''
  Crucially, however, Congress did not similarly provide that subsidies 
would be available to subscribers enrolling through a federally 
established exchange, and the reason is obvious: If subsidies were 
available under both State and Federal exchanges, States would not have 
any incentive to create their own exchanges because the subsidies would 
come either way. Fewer States would create exchanges, meaning the 
Federal Government would have to step in and create more exchanges of 
its own.
  The restriction of subsidies to State-established exchanges was thus 
a key element of ObamaCare's entire cooperative federalism scheme. 
Without this restriction, the end result would have been a federally 
run health care market--a result unacceptable to several key ObamaCare 
supporters whose votes were essential to passage of the bill.
  Now we come to President Obama's act of overreach. Notwithstanding 
the unmistakably clear text of the statute, which limits subsidies to 
plans purchased through State-established exchanges, and 
notwithstanding that this limitation was absolutely fundamental to 
accomplishing Congress's purpose of incentivizing States to establish 
exchanges, the President decided he would also offer subsidies for 
plans purchased through federally established exchanges.
  President Obama's open defiance of clear statutory text and utter 
disregard for the balance Congress struck is an affront to the 
separation of powers and to the rule of law. The President and his 
enablers argue that subsidies for federally enrolled plans are 
necessary to accomplish ObamaCare's overall purpose of reducing costs 
and improving health care access. Without subsidies to individuals in 
the 34 States without State-run exchanges, the President argues that 
residents of those States will be hit with higher costs and 
unaffordable health care. The law must be rewritten, he says, to avoid 
the consequences the law itself imposes.
  Laying aside the fact that the Constitution gives Congress, not the 
President, the power to amend laws, the President's argument is 
completely circuitous. The reason 34 States could afford not to 
establish exchanges is because the President said he was going to pay 
subsidies regardless of whether a State establishes an exchange. Why 
would a State go to the trouble and expense of creating an exchange if 
the end result is the same?
  The President also grasps at exceedingly thin straws. Because the 
backstop provision instructs that if a State does not establish an 
exchange, HHS shall step in and establish such exchange itself, the 
President says this means Federal exchanges are State exchanges. Right 
is left and up is down.
  But let's return to the real provision in dispute in King, the one 
that defines eligibility for subsidies. This provision says, again, 
that an individual is eligible for each month that she is covered by a 
plan that she ``enrolled in through an Exchange established by the 
State.'' An exchange established by the Federal Government is by 
definition not an exchange established by the State, regardless of 
whether the Federal exchange is a backstop or not.
  It gets even worse for the President because the provision 
additionally specifies that the State exchange must have been 
established ``under section 1311 of the [statute].'' That section sets 
forth the requirements for creating State-run exchanges. Nowhere does 
it

[[Page 3212]]

mention Federal exchanges. Rather, the conditions for creation of 
Federal exchanges appear in a different section--section 1321. Under no 
plausible reading of the text does a State exchange established under 
section 1311 mean a Federal exchange established under section 1321.
  Advocates of the President's position would have us believe that 
statutes are infinitely malleable--up can mean down, right can mean 
left, established by a State can mean not established by a State. What 
matters to them is advancing some vague notion of statutory purpose 
that coheres with the President's leftwing agenda, regardless of what 
the statute actually says.
  Those of us on the other side, however, insist that text matters, 
words matter. What the statute says is what matters, because at the end 
of the day the words in our statutes and in our Constitution are what 
bind our leaders and what prevent them from doing whatever they want.
  The administration's actions in King have undermined the rule of law 
and contravened important constitutional checks on the President's 
authority. As has increasingly become the case under President Obama, 
it is now up to the Supreme Court to rein in the President's overreach 
and to reaffirm the fundamental obligation of all government officials 
to follow the law. I surely hope the Court will do so.

                          ____________________