Stuart M. Gerson, a Member of the Firm in the Litigation and Health Care & Life Sciences practices, in the firm's Washington, DC, and New York offices, was quoted in Law360, in “Attys Predict Supreme Court Will Uphold ACA's Tax Credits.” (Read the full version — subscription required.)
Following is an excerpt:
“One hopes that the more liberal justices decline to accept the reasoning of the Solicitor General and many liberal commentators to hold that the state-specific language should be ignored because the policy informing the ACA cannot be achieved unless all exchanges are treated equally. That is an invitation to bad judging, requiring judges to act as legislators. Instead, they might focus on another section of the law guaranteeing a premium tax credit to any ‘applicable taxpayer.’ That is one whose household income is between 100 percent and 400 percent of the federal poverty level. Thus, the contextualist judges — and I think they will be in the majority — can conclude that the ACA defines all income-eligible taxpayers as potentially eligible to receive a credit — regardless of whether their state has its own exchange. This might be foreshadowed in last week’s decision in Yates v. United States, where both the majority and dissent overtly followed a contextualist, rather than strict textualist, approach.”
