It depends on what the meaning of the word “such” is. — Bill Clinton (maybe, if he were a lawyer in King v. Burwell)
The word “such” is having its fifteen minutes of fame with the recent PPACA litigation. Much of the government’s narrow textual argument hinges on the word “such”: Yes, section 1401 makes subsidies available on an exchange “established by the State.” But in the absence of a state exchange, section 1321 provides for the federal government to establish “such Exchange.” That “such” (along with numerous other contextual and structural indicators) means that the federal exchange is the functional equivalent of a state exchange when state exchanges are referenced elsewhere in the statute, including in section 1401.
The challengers call this argument “preposterous.” (They say that right in a heading on page 22!) But by rejecting the government’s argument, the challengers run into their own problems when faced with the PPACA’s definition of a “qualified individual” eligible to enroll in an exchange. To get around this problem, the litigants invoke the quite unconvincing “Air Bud” method of statutory interpretation.
But the masterminds behind these challenges—Jonathan Adler and Michael Cannon—go a different route in their amicus brief. They know better than to adopt the “Air Bud” canon. Instead, they do this:
See what they did there? When the meaning and function of the federal exchanges is being discussed in connection with the section 1321 creation of federal exchanges and the section 1401 provisions for subsidies, the word “such” does not create a functional equivalence between state exchanges and federal exchanges.
But when the contextual hurdle of “qualified individuals” needs clearing, “such” becomes a powerful word. The requirements for enrollment that appear limited to state exchanges are brushed aside because section 1321 provides for federal exchanges to have “such” requirements. The strength of “such” ebbs and flows, depending on whether it supports or conflicts with the chosen interpretation. This is the essence of statutory isolationism. Is there a benefit that accrues to individuals on state exchanges? Then “such” can’t make that benefit available on federal exchanges. But is there a burden? Then “such” does the job.