Legal Sidebari

Using the Power of the Purse to Change
Policy: SCOTUS Case on ACA Risk Corridors
Asks Important Appropriations Law Question
November 1, 2019
In the world of recent litigation involving the Patient Protection and Affordable Care Act (ACA), most
attention has focused on the ongoing litigation in the U.S. Court of Appeals for the Fifth Circuit
surrounding the constitutionality of the individual mandate. However, the Supreme Court is scheduled to
hear several cases involving another, perhaps lesser known provision of the ACA concerning “risk
corridors.” While the risk corridors cases—three cases consolidated under the lead case of Maine
Community Health Options v. United States—do not raise a question as to the validity of the entire ACA,
they do raise important issues regarding the interpretation of appropriations acts, particularly when such
acts conflict with authorizing statutes. After providing some background on the statutory provisions at
issue, this Sidebar discusses relevant Supreme Court precedent regarding resolution of those conflicts and
the broader implications that the risk corridor cases may have.
Background
The ACA provided for a temporary risk corridors program to balance profits and losses of applicable
insurers in the individual and small group markets in the early years following the statute’s 2014 rollout.
For years 2014 through 2016, the law specified that the “[Health and Human Services] Secretary shall
pay” to insurers experiencing a shortfall a subsidy calculated as a percentage of their losses. Conversely,
insurers with costs below revenue from premiums would need to pay a percentage of their profits to the
agency.
Although the amounts of incoming and outgoing payments under the risk corridor program are
established in statutory formulas, Congress used appropriations riders to limit the funds available for all
outgoing payments under the risk corridors program to the total amounts received from insurers. Such
riders typically provided that:
None of the funds made available by this Act from the Federal Hospital Insurance Trust Fund or the
Federal Supplemental Medical Insurance Trust Fund, or transferred from other accounts funded by
this Act to the ‘‘Centers for Medicare and Medicaid Services—Program Management’’ account,
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may be used for payments under section 1342(b)(1) of Public Law 111–148 (relating to risk
corridors).
Accordingly, when receipts from profitable insurers under the program fell short of the amount needed to
pay insurers experiencing losses, those insurers only received a prorated share of the total amount that the
government would have otherwise paid them for the year. In 2017, CMS reported that the total receipts
under the program from 2014 to 2016 fell short of the total amount of outgoing payments according to the
formula by more than $12 billion.
After CMS began reducing outgoing risk corridor payments, more than two dozen insurers sued the
federal government in the U.S. Court of Federal Claims, seeking to obtain full risk corridor payments
notwithstanding the limitation on appropriations established by Congress. Fundamentally, the insurers’
maintain that the ACA’s statutory language and accompanying regulations require that risk corridors
payments be made according to the statutory formula, even absent sufficient congressional appropriations.
The executive branch argue that Congress’s actions in limiting appropriations for such payments have
required the program to be operated in a budget-neutral fashion, such that payment obligations to insurers
depend on the availability of payments made into the program.
The plaintiffs obtained mixed results in the U.S. Court of Federal Claims with competing decisions issued
in favor of both the government and insurers. However, in June 2018, the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit), resolved the varying decisions by holding, in Moda Health Plan, Inc. v.
United States, that Congress had implicitly limited the government’s obligation to make risk corridor
payments by limiting the appropriations available to make such payments. Subsequently, the insurer in
that case asked the Supreme Court to review the Federal Circuit’s decision, which the Supreme Court
agreed to do as part of its October 2019 term.
Appropriations Acts and Repeals by Implication
An agency’s statutory authorization for a particular activity (i.e., authorizing legislation) may be
distinguished from legislation authorizing the withdrawal of money from the Treasury to pay for such
activities (i.e., appropriations acts). In general, the simple act of appropriating less than what is required
to make all payments under a statutory scheme is insufficient to indicate a congressional intent to
implicitly amend or repeal the authority for such payments. Nevertheless, without an appropriation, the
disbursing authority of the agency is still limited, and recovery of payment may require recovery through
litigation.
That was the route pursued by the insurers in these cases to recover unfunded risk corridor payments. If
Congress had explicitly repealed or suspended the risk corridors statute or amended the law to make the
Secretary’s obligation to make payments subject to the availability of appropriations, the insurers’ case
would be far weaker, as they would likely not be entitled to recover the shortfall under the plain language
of the authorizing statute. However, Congress did not act so explicitly. As a result, these cases invoke the
doctrine of repeal by implication, in which one statute is construed to amend, repeal, or otherwise modify
the operation of a second, despite the lack of express language to that effect.
The Supreme Court has frequently noted that repeals by implication are disfavored. This presumption
against repeals by implication “applies with full vigor” when, as in these cases, it is asserted that a
provision in an appropriations act is implicitly repealing another statute. Nevertheless, if it is
“unmistakable” that Congress intended to effectuate such a repeal, courts are required to give effect to
that construction. In looking at questions of legislative intent, courts traditionally begin with the enacted
text, but may also look to the context and statements in the legislative history surrounding enactment to
help inform potential ambiguities in the text.

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Textual Considerations
The Supreme Court has resolved a number of cases involving repeals by implication in appropriations
acts. For example, in United States v. Langston, Congress appropriated only $5,000 for the salary of a
foreign minister, even though the rate of pay had been set higher at $7,500. The Supreme Court held that
“a statute fixing the annual salary of a public officer at a named sum, without limitation as to time, should
not be deemed abrogated or suspended by subsequent enactments which merely appropriated a less
amount for the services of that officer for particular fiscal years,” especially when that appropriation
“contained no words that expressly, or by clear implication, modified or repealed the previous law.” In
support of this conclusion, the Court noted that Congress had repeatedly reauthorized the statute fixing
the officer’s salary without modification, providing no indication that appropriating a lower amount was
meant to effectuate a reduction in salary.
However, where the language of an appropriation structurally changes the nature of a payment scheme,
that fact may constitute strong evidence of Congress’s intent to repeal or suspend the underlying statute
authorizing payment. For example, in United States v. Mitchell, Congress enacted a statute setting the
salaries of interpreters within the Department of the Interior at either $500 or $400 each “in full of all
emoluments and allowances whatsoever.” Congress subsequently enacted appropriations providing for
compensation of such interpreters at only $300 each, while providing an additional lump-sum
appropriation of $6,000 for additional pay of such interpreters in the discretion of the Secretary of the
Interior. The Supreme Court distinguished this set of facts from Langston in which Congress had not
appropriated “any or a sufficient sum” to pay the salary of an officer fixed in law, holding that the
subsequent appropriation at issue in Mitchell clearly expressed a change in policy regarding the
compensation of interpreters. Whereas the initial statute had a set a fixed sum “in full of all emoluments
and allowances whatsoever,” the appropriations, in the Court’s view, contemplated some variation in
compensation at the discretion of the Secretary of the Interior. As a result, the Court viewed Congress’s
intent to “fix, by the appropriation acts … the annual salaries of interpreters . . . at $300 each” was “plain
on the face of the statute.”
Legislative History
The Supreme Court has, at least as a historical matter, viewed the absence or presence of statements in the
legislative history surrounding an enactment also to be probative of a congressional intent to repeal
through an appropriations act. For example, in United States v. Vulte, the Supreme Court held that an
appropriations riders limiting the payment of certain marine corps officer bonuses did not effectuate a
permanent repeal of a statute authorizing the payment of those bonuses, such that when the appropriations
rider was removed, the contested bonus payments again became available. In contrast, in United States v.
Dickerson, the Supreme Court held that an enlistment bonus that had been explicitly suspended for five
years in appropriations language continued to be suspended in the sixth year, citing to statements in the
Congressional Record indicating that both proponents and opponents of the policy understood the
provision to be suspending the enlistment bonuses. Similarly, in United States v. Will, the Supreme Court
concluded that appropriations riders had repealed or postponed pay raises for certain federal officials
including judges, citing passages in the Congressional Record that, for the Court, “indicate[d] clearly that
Congress intended to rescind these raises entirely, not simply to consign them to the fiscal limbo of an
account due but not payable.”

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Potential Implications for the ACA and Future
Appropriations Riders
At the Supreme Court, the Justices may probe whether the text and structure of the appropriations rider
concerning risk corridor payments evidenced a change in policy for the program or whether Congress
simply underfunded the program. If it is the former, then that strongly suggests, under Mitchell, that
Congress intended to change the promise it made to insurers. If the text and structure does not resolve the
question, an open question is whether the Court may turn to the legislative history to discern
congressional intent. The Federal Circuit focused on statements made by the former Chairman of the
House Appropriations Committee in which he said that the government “will never pay out more than it
collects from issuers over the three-year period risk corridors are in effect.” Notwithstanding the historical
precedent in Dickerson and Will, some members of the judiciary have regarded the practice of using
legislative history to divine congressional intent with skepticism, and it remains to be seen whether the
Court will view the statements the Federal Circuit relied upon as similarly persuasive.
If the Court sides with the insurers in these cases, the payments will help defray losses they may have
incurred during plan years 2014-2016. While a decision in either direction would not appear to have great
significance for the ongoing operation of the ACA because the risk corridors program has lapsed, it may
provide additional guidance on how to interpret other appropriations riders Congress has enacted or may
enact in the future to shape federal policy. For example, if the Court holds that the risk corridors rider’s
silence regarding its effect on existing law is conclusive, then other comparable riders may receive similar
treatment by courts.
Oral arguments in the risk corridor cases are scheduled for December 10, 2019.

Author Information

Edward C. Liu

Legislative Attorney




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