Page:King v. Burwell.pdf/32

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 State" to use a “secure electronic interface” to determine eligibility for (among other things) tax credits. §1396w-3(b)(1)(D). The Act authorizes "an Exchange established by the State" to make arrangements under which other state agencies “determine whether a State resident is eligible for [tax credits] under section 36B." §1396w-3(b)(2). The Act directs States to operate Web sites that allow anyone "who is eligible to receive [tax credits] under section 36B” to compare insurance plans offered through “an Exchange established by the State." §1396w-3(b)(4). One of the Act’s provisions addresses the enrollment of certain children in health plans "offered through an Exchange established by the State" and then discusses the eligibility of these children for tax credits. §1397ee(d)(3)(B). 

It is bad enough for a court to cross out "by the State" once. But seven times?

Congress did not, by the way, repeat "Exchange established by the State under [§18031]" by rote throughout the Act. Quite the contrary, clause after clause of the law uses a more general term such as "Exchange" or "Exchange established under [§18031]." See, e.g., 42 U. S. C. §§18031(k), 18033; 26 U. S. C. §6055. It is common sense that any speaker who says "Exchange" some of the time, but "Exchange established by the State" the rest of the time, probably means something by the contrast.

Equating establishment "by the State" with establishment by the Federal Government makes nonsense of other parts of the Act. The Act requires States to ensure (on pain of losing Medicaid funding) that any "Exchange established by the State" uses a "secure electronic