July 22, 2014 was arguably the most important day in the history of the implementation of the Affordable Care Act since the Supreme Court issued its ruling in the National Federation of Independent Business case in June of 2012. As no doubt most readers of this blog know by now, shortly after 10 a.m. the United States Court of Appeals for the District of Columbia Circuit handed down its decision in Halbig v. Burwell. Two judges ruled over a strong dissent that an Internal Revenue Service rule allowing federally facilitated exchanges to issue premium tax credits to low and moderate income Americans is invalid.
Approximately two hours later the Fourth Circuit Court of Appeals in Richmond, Virginia, unanimously upheld the IRS rule in King v. Burwell. Combined, the cases contain five judicial opinions, three in the Halbig case and two in King. Four of the six judges voted to uphold the rule, two to strike it down.
The issue in the cases is this: The ACA authorizes the IRS to provide premium tax credits to individuals with household incomes between 100 and 400 percent of the federal poverty level who are not eligible for other minimum essential coverage (such as affordable and adequate employer coverage, Medicaid, or Medicare). Premium tax credits are, however, only available to individuals who purchase coverage through the exchanges.
The ACA requests that the states establish exchanges, and sixteen states and the District of Columbia have done so. The ACA also, however, authorizes the federal government to establish exchanges in states that fail to set up their own exchanges. The federal government has done so in 34 states and is operating the individual exchange for two more. The IRS regulation allows premium tax credits to be awarded to eligible individuals in both states with state-operated exchanges and states with federal exchanges.
Two subsections of the ACA, which describe how the amount of tax credits are to be computed and what months can be covered by tax credits, however, provide that tax credits are available for months in which an individual is enrolled in a qualified health plan “through an Exchange established by the State under 1311” of the ACA. The plaintiffs in the King and Halbig cases argue that this provision bars the IRS from issuing premium tax credits to individuals who enroll in qualified health plans through federal, as opposed to state-operated, exchanges.
These cases, as well as two other cases pending in the federal district courts in Oklahoma and Indiana brought by the attorneys general of those states, have clearly been brought for a political purpose — to bring down the ACA. To begin, an ultimate ruling for the plaintiffs would bar millions of Americans who live in states that have federally facilitated exchanges from receiving premium tax credits, making their health insurance unaffordable. It would also render the employer mandate unenforceable in federally facilitated exchange states — employers that fail to provide minimum essential coverage or fail to provide affordable and adequate coverage are only subject to a tax penalty if one or more of their employees receive premium tax credits for the purchase of a qualified health plan through an exchange.
A plaintiffs’ win would also weaken the individual mandate, as many individuals who may owe a tax under the individual mandate are individuals for whom coverage would be unaffordable — and who would thus be exempt from the mandate — were it not for the assistance they will receive for purchasing insurance through premium tax credits.
Moreover, there is good reason to believe that premiums in the individual market generally would rise sharply in federally facilitated exchange states in the event of a plaintiffs’ ultimate victory. The ACA’s market reform provisions (which are not challenged in this litigation) would remain in place in those states, requiring insurers to cover individuals with pre-existing conditions without increased premiums, but individuals in those states could not get premium tax credits, the employer mandate would not apply, and the individual mandate would not fully apply. It might become impossible for anyone in the federal exchange states to purchase individual insurance.
This is what has reportedly happened in some of the territories where the market reforms apply but premium tax credits are not available and there is no individual or employer mandate, causing HHS to determine last week that the insurance market reforms do not apply in the territories (based on a conclusion that the territories are not “states,” which obviously cannot be applied to the 50 states). This litigation poses a very serious challenge to the ACA. It was intended to.
It is important at the outset to clarify the effect of these cases. The judgment of the D.C. Circuit states “that the judgment of the District Court appealed from in this cause is hereby reversed and the case is remanded with instructions to grant summary judgment to appellants and vacate the IRS Rule for the reasons in the accompanying opinion.” In fact, however, under the federal rules, this judgment is automatically put on hold until seven days after the expiration of the 45-day period the government has to request a rehearing by all eleven judges of the D. C. Circuit (plus the two senior judges who were on the panel). If the government requests such “en banc” review (and it already has said that it will); one judge requests a vote on the request; and a majority of the judges grant the request, the entire court will likely set aside the three judge panel decision and rehear the case itself. This will likely take several months.
The plaintiffs can, on the other hand, request Supreme Court review of the Fourth Circuit decision rejecting their case. They could also request en banc review, but given the unanimous decision of the panel and the current composition of the judges on the Fourth Circuit, review would be unlikely. The Supreme Court’s standard practice would be to delay acting on a King petition to see whether there is an actual Circuit split — that is, to see whether the D.C. Circuit en banc confirms the Halbig panel’s ruling, leaving a conflict with the Fourth Circuit– but the Court is free to disregard that standard practice if enough Justices would like to decide the case now. In any event, a Supreme Court ruling would not occur for some time. In the interim, the White House has announced that the federally facilitated exchanges will issue premium tax credits.
The D.C. Circuit Majority Opinion
The D.C. Circuit opinion was written by Judge Thomas Griffith, a George W. Bush appointee. Judge A. Raymond Randolph, a G.W.H. Bush appointee, wrote a brief concurring opinion. Judge Harry Edwards, a Carter appointee, wrote a vigorous dissent.
Judge Griffith’s opinion is long (42 pages) and carefully worded. He expressly avoids adopting some of the plaintiffs’ most clearly specious arguments, which Judge Randolph seemed to accept in oral argument. Judge Griffith does not completely disown these arguments, instead limiting them to footnotes. For example, he refers obliquely in footnote 4 to the plaintiffs’ argument that the ACA premium tax credits were based on the Trade Adjustment Act health care tax credit program, and in footnote 11 to their argument that premium tax credits were limited to state-operated exchanges at the insistence of Senator Ben Nelson.
Both arguments are demonstrably false, but Judge Griffith is careful not to weaken his opinion by relying on them. Rather, he states that the provision of the statute at issue — section 36B of the Internal Revenue Code — literally limits premium tax credits to federal exchanges; nothing else in the statute is inconsistent with this; and the government cannot establish that the purpose or legislative history of the statute, if it is relevant at all, contradicts this.
Judge Griffith begins (as does the Fourth Circuit opinion) by finding that at least one of the individual plaintiffs has been sufficiently injured by the rule to have standing to sue, since the rule would make health insurance affordable to him, thus subjecting him to the individual mandate from which he would otherwise be exempt. Both courts also hold that that a tax refund suit was not an adequate alternative to a challenge to the rule on its face.
Statutory language. Judge Griffith turns next to the language of the statute. The crux of the case, in his view, is whether a federally facilitated exchange can be an “Exchange established by the state under 1311.” Section 1311 says that the states “shall” establish exchanges. Section 1321 enjoins HHS to establish “such” exchange — that is a 1311 exchange — if a state fails to do so. But, says Judge Griffith, a 1321 federal exchange is not an exchange “established by the state.”
The government argued that section 1311(d)(1), which provides that “An Exchange shall be a governmental agency or nonprofit entity that is established by the state,” provides that a 1321 exchange is by definition established by the state. Judge Griffith concludes that this section is operational rather than definitional, and that this subsection would have been a strange place to bury a definition. But in fact section 1311 defines both the meaning and duties of an exchange and is exactly where one would expect to find what an exchange “established by the state under 1311” means.
Judge Griffith further writes that, while section 1321 provides for a substitution scheme under which the requirements assigned by states under 1311 are transferred to the federal exchange, section 1321 does not refer to 36B, the tax credit section. However, since section 1321 allows the federal government to take over the “operation” of exchanges, as well as to “such other requirements as the Secretary considers appropriate,” and section 1411 directs HHS to set up a program for determining eligibility for premium tax credits, this point seems unpersuasive.
Judge Griffith turns next to the government’s argument that his interpretation renders several other ACA provisions absurd. In particular, the court discusses reporting requirements in section 36B that clearly apply to federal exchanges and require the reporting of premium tax credit amounts; the definition of “qualified individual” as individuals who “reside in the state that established the exchange;” and a provision that requires states to maintain Medicaid eligibility requirements until an exchange in those states is established by the state.
The reporting requirement is entitled “Reconciliation of credit and advance credit.” It expressly applies to federal as well as state exchanges and requires reporting, among other things, “the aggregate amount of any advance payment of” tax credits and “information to determine whether a taxpayer has received excess advance payments.” Judge Griffith maintains, however, that even if tax credits are not available, reports from the federal exchanges as to who is covered will still help enforce the individual mandate. Also, since not all enrollees get tax credits, reports will be filed by both federal exchanges as to some individuals who do not receive any credits.
Enforcing the mandate may be another purpose of the reporting requirement, and some individuals subject to reports may not receive tax credits. However, as Judge Edwards points out in dissent, several subsections of the reporting requirement become completely meaningless if federal exchanges can grant no premium tax credits to anyone. It is more likely that the reporting provision, which was adopted by the reconciliation act after the ACA and is thus important in interpreting how Congress read the ACA, demonstrates that federal as well as state exchanges can issue premium tax credits.
Similarly, Griffith concludes, the fact that “qualified individuals” must reside in states that have established exchanges, including arguably those established on behalf of a state by the federal government, means nothing. Nothing in the ACA, he claims, limits enrollment in exchanges to “qualified individuals.” One must wonder, however, what a qualified individual is qualified for if not to enroll in an exchange, since the term is defined as an individual who “is seeking to enroll” in a qualified health plan through an exchange.
Finally, Judge Griffith concludes that in fact a provision of the ACA that says that a state may not tighten Medicaid adult eligibility standards until HHS determines that the state has established an exchange means exactly what it says. A state with a federal exchange must maintain its Medicaid eligibility standards forever. This will certainly come as a surprise to federal exchange states. Judge Griffith also concludes that a provision, identified by Judge Edwards, that requires states that experience Children’s Health Insurance Program shortfalls to enroll excess children in an exchange “established by the state” is an oddity, but does not render his interpretation of the statute nonsensical.
Legislative purpose and history. Having concluded that the “Exchange established by the state under 1311” is unambiguous and not inconsistent with other provisions of the ACA, Judge Griffith turns to the legislative purpose and history. He first proposes that since the language of the statute is clear, no further evidence is needed of legislative intent. He decides, however that legislative history might be relevant if it shows that a literal reading of the statue is “demonstrably at odds with the intentions” of Congress. He acknowledges that the CBO and sponsors of the legislation assumed tax credits would be available in all states, but suggests that they may have assumed that all states would establish exchanges.
Griffith contends that the government’s argument is primarily one from silence — the lack of legislative history supporting the proposition that only state exchanges could issue premium tax credits. Here Judge Griffith again adverts to the plaintiffs’ legislative history arguments — that a Senate committee bill that Congress did not adopt included penalties for states that did not create exchanges — but does not rely on this. Rather he opines that the government’s argument from silence is not adequate. The government must affirmatively show legislative history supporting its position.
He also rejects the argument that Congress can only achieve its goal of “near universal coverage,” if premium tax credits are available in all states, in addition to the individual mandate and the insurance market reforms that require insurers to cover individuals without regard to preexisting conditions. Without the premium tax credits, the government argued, health insurance markets would collapse (as noted at the beginning of this post).
Here Judge Griffith turns to two other provisions of the ACA, where, he contends, Congress created unstable insurance markets. The first is the territories, where the insurance market reforms apply but there are no premium tax credits. This argument is undermined by the fact, missed by Judge Griffith, that HHS has recently concluded that it was not the intention of Congress to apply the market reforms in the territories, thus removing the problem Griffith claims to exist.
Griffith also states that Congress risked destabilized markets in the CLASS Act, which provided community long term care services and also required compliance with the market reforms without premium subsidies. But the CLASS Act expressly required the creation of actuarially sound benefit plans and a report to Congress if the program was not actuarially sound. HHS concluded that designing an actuarially sound program might not be possible, and Congress accordingly repealed the program. But no such escape provision can be found in section 36B.
In the end, Judge Griffith concludes that the legislative record does not contradict what he views as the plain language of the statute. He ends his opinion with a perfunctory acknowledgement of the “significant consequences for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly,” but says the principle of legislative supremacy was “higher still.”
Judge Randolph offers a brief three paragraph concurrence stating that courts have no business adding to legislation what Congress omitted.
The D.C. Circuit Dissent
While Judge Edwards does not address the jurisdictional issues decided by Judge Griffith, he otherwise rejects the majority opinion point by point. He also takes on arguments made by the plaintiffs in their briefs and arguments, which he characterizes as “nonsense” but Judge Griffith avoids. The dissent thus sometimes reads like Judge Edwards is not really dissenting from the opinion Judge Griffith actually wrote but that which he could have written had he simply accepted the plaintiffs’ entire argument. Perhaps Edwards is appealing to a higher court.
Judge Edwards begins with the observation that the premium tax credits, as well as the insurance market reforms and the individual mandate, are essential to achieving the goal of the statute. Without them, “the structure of the ACA will crumble” as asserted by one of the plaintiffs’ amici. “It is inconceivable” argued Judge Edwards, “that Congress intended to give States the power to cause the ACA to crumble.”
Judge Edwards argues that the place to begin analysis of the case is the Chevron rule, named after the case where the rule was first recognized, which governs review of the decisions of administrative agencies in the federal courts. Under that rule, courts must defer to “permissible” constructions of a statute by administrative agencies given authority by Congress to interpret the law if a law is “silent or ambiguous” on a point. The majority, he argues, ignores the obvious ambiguity of the statue and thus improperly refuses to defer to the agency, issuing a judgment therefore “that portends disastrous consequences.”
A court interpreting a statute, writes Judge Edwards citing much authority, must not confine itself to the language of the statute itself but rather consider the context of the entire statute. Moreover, under the Chevron rule, if a statute does not directly address the precise question at issue, a court must defer to an agency’s interpretation of the statute if it is not “manifestly contrary to the statute,” This is, as we will see shortly, the approach taken by the Fourth Circuit in the King case.
Continuing, Judge Edwards contends that the “established by the state” language of 36B must be read in context and with an eye to the purpose of the statute and congressional intent. Congress cannot have intended to prescribe a “poison pill” for insurance markets. And “no legitimate method of statutory interpretation ascribes to Congress the aim of tearing down the very thing it attempted to construct.” There is no evidence, says Judge Edwards, that Congress intended to prohibit federal exchanges from issuing premium tax credits, and there is no evidence that any state decided whether or not to create a state exchange based on the understanding that federal exchanges could not issue premium tax credits.
There is, contends Judge Edwards, no unambiguous evidence that Congress meant to allow only state exchanges to issue premium tax credits, and thus the court must defer to the IRS. Moreover, argues Judge Edwards, the IRS interpretation of the statute is not only “permissible but also the better construction of the statute” because:
the Act empowers HHS to establish exchanges on behalf of the States, because parallel provisions indicate that Congress thought that federal subsidies would be provided on HHS-created exchanges, and, most importantly, because Congress established a careful legislative scheme by which individual subsidies were essential to the basic viability of individual insurance markets.
Judge Edwards then turns to Judge Griffith’s opinion, which he contends rests on a “narrow, out-of-context” interpretation of the statute. Read in the context of the statute as a whole, which is to say together with sections 1311 and 1321, the majority’s reading of the statute collapses. The ACA requires all states to establish exchanges. All residents of all states must be served by an exchange that could issue tax credits. If a state fails to establish “such exchange,” HHS must, under the statute, establish an exchange on its behalf.
An exchange “established by the state” is simply an exchange established within a state, which includes all exchanges. This is made clear by 1311(d) which is in fact definitional, not operational. By definition, all exchanges are “established by the state” under that provision. Congress could not, argues Edwards, have meant to undermine the structure and meaning of these provisions by hiding in the language establishing the calculation of tax credits and the definition of “coverage month” a further requirement that exchanges must be state exchanges to grant premium tax credits.
Judge Edwards next returns yet again, like a fugue, to his main theme: premium tax credits are “an indispensible component of creating viable and stable insurance markets.” Congress could not have meant to have introduced instability to the “core provisions of the ACA,” where the individual mandate and premium tax credits were provided for stabilizing the individual health insurance market. The fact that an individual mandate and premium tax credits were not provided in the “peripheral” territory and CLASS Act markets reinforces the argument that Congress intended to treat these markets differently.
Edwards turns then to other provisions of the statute. He argues that the reporting requirement, which the majority dismisses as irrelevant, is in fact directly relevant to the question at hand. It is indeed titled “Reconciliation of credit and advance credit” and makes no sense if the federal exchanges have no tax credits to report. The definition of ‘qualified individual” as a resident of a “State that established an Exchange” is the only definition in the statute , and if the federal exchange is not an exchange established by the state it cannot enroll anyone.
Finally, Judge Edwards turns to the legislative history. There is no support at all in that history, he finds, for the plaintiffs’ argument that Congress limited subsidies to states that established exchanges to force states to set up their own exchanges. Indeed, there is no evidence that states understood this to be the case. In the NFIB case, the plaintiffs repeatedly contrasted the compulsion they experienced to expand Medicaid with the “real choice that the ACA offers states to create exchanges or have the federal government do so.” Judge Edwards observes that the single piece of evidence the plaintiffs can point to that suggests that Congress meant to restrict subsidies is an article that I wrote in early 2009; he notes, “There is no evidence, however, that anyone in Congress read, cited, or relied,” on my article.
Judge Edwards concludes:
The majority opinion evinces a painstaking effort – covering many pages – attempting to show that there is no ambiguity in the ACA. The result, I think, is to prove just the opposite. Implausible results would follow if “established by the State” is construed to exclude Exchanges established by HHS on behalf of a State. This is why the majority opinion strains fruitlessly to show plain meaning when there is none to be found.
The IRS’s and HHS’s constructions of the statute are perfectly consistent with the statute’s text, structure, and purpose, while Appellants’ interpretation would “crumble” the Act’s structure. Therefore, we certainly cannot hold that that the agencies’ regulations are “manifestly contrary to the statute.” This court owes deference to the agencies’ interpretations of the ACA.
The Fourth Circuit
The opinion of the Fourth Circuit in King picks up where Judge Edwards’ opinion leaves off. The opinion was written by Judge Roger Gregory, a recess appointee of President Clinton who was reappointed by President George W. Bush. He is joined by Judge Stephanie Thacker, an Obama appointee (the only one of the six judges in the two opinions not to offer her own opinion). Judge Andre Davis, an Obama appointee, concurred in the judgment.
It is hard to avoid the impression that the Fourth Circuit was lying in wait for the D.C. Circuit, intending to issue its opinion immediately in the wake of the D.C. Circuit’s, thus taking the edge off of the challenge the D.C. Circuit decision presents to the ACA. Indeed, the decision was announced at noon, while the Fourth Circuit normally waits until 2:30 to announce its decisions. Whether the timing of the release was intentional or not, its effect was clearly to create an immediate contrast to Judge Griffith’s decision.
After describing the provisions of the ACA at issue and the claims of the plaintiff, Judge Gregory turns to the questions of justiciability. Like the judges in Halbig, he finds that plaintiffs establish standing, since the tax credits subject them to the individual mandate and a possible penalty if they do not purchase health insurance. He also concurs that a tax refund suit is not an adequate alternative to their suit to declare the regulation invalid.
Turning to the merits, Judge Gregory, like Judge Edwards, begins with the Chevron rule. Under step one of Chevron, if a statute is clear and unambiguous, the court must give effect to it, regardless of how the agency has interpreted it. The first task of the court, therefore, is to determine whether “Congress’s intent in enacting” a law “was so clear as to foreclose any other interpretation.”
Judge Gregory starts this inquiry with the “plain language” of the statute. He recites the plaintiffs’ position that “Exchange established by the state” must mean a state-operated exchange, and concedes that “there can be no question that there is a certain sense to the plaintiffs’ position.” He cites the by now familiar provisions of 1311 requiring states to establish exchanges, which defines an exchange as “a governmental agency or nonprofit entity established by the state,” and section 1321’s directive that HHS establish “such exchange” if a state fails to do so. Looking only at the plain language of the statute, Judge Gregory concludes that the government has the stronger position, “although only slightly,” but that the intent of Congress does not “foreclose any other interpretation.”
The court then turns to the reporting requirements and the definition of “qualified individual” already discussed in the context of Halbig. The court recites the arguments of both the plaintiffs and the government as to how these provisions should be understood, and again concludes “while we think the defendants make the better of the two cases,” neither interpretation renders Congress’s intent clear.
Judge Gregory next determines that “The Act’s legislative history is also not particularly illuminating,” citing floor statements by members of Congress that premium tax credits would be available in all states, but acknowledging that they could have been made on the assumption that all states would in fact establish exchanges. The judge also acknowledges that the plaintiffs’ argument that Congress adopted the language it did to ensure state operation of exchanges is “at least plausible.” On every count, the court concludes that, although the government has the better arguments, the statute remain ambiguous.
Thus Judge Gregory turns, as did Judge Edwards, to the second step of Chevron. The court must defer to the interpretation of the statute by the administrative agency charged by Congress to interpret the statute, here the IRS, if that interpretation is not “arbitrary, capricious, or manifestly contrary to the statute.” The IRS rule, the court concludes, is in fact “entirely sensible” given the purpose of the statute. Here the court reverts to the by-now-familiar three-legged stool: the market reforms, individual mandate, and premium tax credits were all essential to create stable insurance markets that can cover all Americans, and the IRS rule promotes this goal. The court concludes that it must defer to the IRS rule.
Judge Davis, concurs in this decision, but would go further. He opines that it is not necessary to even get to Chevron step two; in fact the IRS has interpreted the law correctly. “Established by the state,” he concludes,
indeed means established by the state – except when it does not, i.e., except when a state has failed to establish an Exchange and when the Secretary, charged with acting pursuant to a contingency for which Congress planned, establishes and operates the Exchange in place of the state. When a state elects not to establish an Exchange, the contingency provision authorizes federal officials to establish and operate “such Exchange” and to take any action adjunct to doing so.
“A straightforward reading of the Act,” Davis contends, “strips away any and all possible explanations for why Congress would have intended to exclude consumers who purchase health insurance coverage on the federally-run Exchanges from qualifying for premium tax credits.”
Davis not only rejects the plaintiffs’ “literal reading,” of the statute, he asserts that it “is not literal; it’s cramped;” is contrary the way governing authority says statutes should be read; and is contrary to common sense.
Congress specified that Exchanges should be established and run by the states, but the contingency provision permits federal officials to act in place of the state when it fails to establish an Exchange. The premium tax credit calculation subprovision later specifies certain conditions regarding state-run Exchanges, but that does not mean that a literal reading of that provision somehow precludes its applicability to substitute federally-run Exchanges or erases the contingency provision out of the statute.
Had Congress in fact meant to limit the availability of tax credits to state exchanges, it would have done so in 1321, the contingency provision, not hidden it in the tax credit calculation provision. The plaintiff’s interpretation of the statue would destroy it, but, Judge Davis notes, “that is their not so transparent purpose.”
Judge Davis concludes that if the plaintiffs do not want health insurance,
they can refuse to pay and run the risk of incurring a tiny tax penalty. What they may not do is rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.
From here, the government goes to the D.C. Circuit en banc, the plaintiffs try to get the attention of the Supreme Court. We also await the decisions of the Oklahoma and Indiana district courts, and eventually the Tenth and Seventh Circuits.
A few questions remain unaddressed by the courts. First, how many federal exchange states are there? Judge Gregory says 34, Judge Griffith 36. The difference obviously is Idaho and New Mexico, which have state exchanges for which operations are handled by the federally-facilitated exchange.
This points to a larger question, however: How exactly does a state “establish an exchange”? This question is neither addressed by the ACA nor by a rule. The Blueprint that states must submit to have their exchange certified requires the state to submit either a “copy of current law and/or regulation that indicates that the State has necessary legal authority to establish an Exchange or that establishes the Exchange, or Other legislation or general authority (e.g., Executive Order) that the State has determined provides the necessary legal authority to establish an Exchange. … and If authority is not clear on its face, provide a Statement from the legal counsel of the office of the applicant, the Governor’s legal counsel, or the State’s Attorney General’s Office (correspondence or a formal legal opinion) certifying that the State is authorized to establish an Exchange under State law.”
Some existing state-operated exchanges are established by legislation, others by the state executive. Arguably, HHS could require a simple application by a governor, although the governor’s authority might be contested in state litigation. The exchange could then ask HHS to perform many of its functions, as some states do now. Under the ACA states may only contract with “eligible entities” which must be state incorporated, but those entities could subcontract with the federal exchange. In many states in the current political climate, neither the state legislature nor governor would under any circumstances establish an exchange. Nevertheless, if the Supreme Court were ever to take on this issue and ultimately agree with Judge Griffith, it might suddenly become a whole lot easier for states to establish an exchange under 1311.