Building the Case for Halbig v. Burwell: What States Knew

“At the heart of Halbig v. Burwell[1] and the series of cases that are following it through the federal court system is an attempt to understand what state and federal legislators were thinking last year, two years ago, even four years ago when the Affordable Care Act (ACA) passed. While many experts and lawyers in this case have hypothesized about Congress’ intent, contrary to the claims of the Government, at least one establishing and one non-establishing state understood the language of the statute to condition subsidies on state establishment of Exchanges when they made their determination on whether to establish an Exchange. Furthermore, this understanding was timely in the chronology of ACA implementation.”