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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 17-TX-1296, 17-TX- 1297, 17-TX-1298, 17-TX-1299, 

17-TX-1300, & 17-TX-1301

UNUM LIFE INSURANCE COMPANY OF AMERICA ET AL., APPELLANTS,

v.

DISTRICT OF COLUMBIA, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(CVT1-17, CVT2-17, CVT3-17, CVT4-17, CVT5-17, CVT6-17)

(Hon. Russell F. Canan, Trial Judge)

(Argued April 23, 2019 Decided September 24, 2020)

Carl Erdmann, with whom Chris Bowers and Nathan Wacker were on the 

brief, for appellants.

Loren L. AliKhan, Solicitor General for the District of Columbia, with whom 

Karl A. Racine, Attorney General for the District of Columbia, Stacy L. Anderson

and Mary L. Wilson, Assistant Attorneys General, were on the brief, for appellee. 

Before BECKWITH and EASTERLY, Associate Judges, and KRAVITZ, Associate

Judge, Superior Court of the District of Columbia.

*

 *

 Sitting by designation pursuant to D.C. Code § 11-707(a) (2012 Repl.).
2

EASTERLY, Associate Judge: As part of the comprehensive health care 

reforms enacted in the Patient Protection and Affordable Care Act (“ACA”), Pub. 

L. No. 111-148, 124 Stat. 119 (2010) (codified as amended in scattered sections of 

21, 25, 26, 29, 42 U.S.C.), Congress gave states a temporary financial incentive to 

take part in a new health insurance marketplace and establish health benefit 

exchanges where individuals and small businesses could more easily purchase 

plans meeting minimum federal requirements. After the ACA’s enactment, the 

District of Columbia Council established a health benefit exchange and authorized 

the entity overseeing the exchange to fund it through a tax on all health insurance 

companies doing a certain amount of business in the District. See D.C. Code 

§§ 31-3171.01(6), 31-3171.03(f)(1) (2016 Repl.). A group of insurers who are 

subject to the tax but do not offer health plans on the District’s exchange, among 

them Unum Life Insurance Company, have challenged the tax, arguing that (1) the 

Council’s legislation is preempted by the ACA, which does not permit the District 

to levy such a tax on these insurers, and (2) by allowing an executive agency to 

administer the tax, the Council impermissibly delegated its legislative power and

violated the nondelegation doctrine as applied to the District’s government. The 

trial court rejected these arguments and granted the District summary judgment. 

We uphold the District’s law against the insurers’ challenge and affirm. 
3

I. Facts and Procedural History

Among other reforms, the ACA established American Health Benefit 

Exchanges (“Exchanges”) to “facilitate[] the purchase” by individuals and small 

businesses of “qualified health plans” meeting certain statutory and regulatory 

qualifications as set out in the ACA. 42 U.S.C. § 18031(b) (2018); see id.

§§ 18021, 18022(c) (defining qualified health plans). See generally King v. 

Burwell, 135 S. Ct. 2480, 2485–87 (2015) (summarizing ACA’s reforms, including 

the role of the Exchanges). Congress gave states the option to establish and 

administer these Exchanges themselves, so long as the Exchange was a 

government agency or nonprofit and met other minimum requirements, such as

maintaining an internet website through which individuals could enroll and a tollfree telephone hotline to field user requests. 42 U.S.C. §§ 18031(b), 18041(a)–(b). 

Exchanges were permitted to offer only qualified health plans, see id.

§ 18031(d)(2)(A), and could not sell certain types of insurance, see id. §§ 300gg63, 300gg-91(c), 18032(d)(2)(B). For those states that declined to create their own 

Exchange, Congress directed the United States Department of Health and Human 

Services (“HHS”) to operate an Exchange in those states. Id. § 18041(c). States 

that established Exchanges would receive federal financial and technical support, 

but only for the first few years after the ACA’s enactment. Id. § 18031(a). The 

ACA provided that by January 1, 2015, the “State shall ensure that such Exchange 
4

is self-sustaining . . . , including allowing the Exchange to charge assessments or 

user fees to participating health insurance issuers, or to otherwise generate funding, 

to support its operations.” Id. § 18031(d)(5). 

The District of Columbia opted to establish the District of Columbia Health 

Benefit Exchange (“Exchange”) and created the District of Columbia Health 

Benefit Exchange Authority (“Authority”) to oversee and implement it. See Health 

Benefit Exchange Authority Establishment Act of 2011 (“Establishment Act”), 

D.C. Law 19-94, 59 D.C. Reg. 213 (codified as amended at D.C. Code §§ 31-

3171.01 to -3171.18). It also formed the District of Columbia Health Benefit 

Exchange Authority Fund (“Fund”) and specified that any revenues placed into the 

Fund would be used to administer the Exchange. See D.C. Code § 31-3171.03(a). 

To fund the Exchange, the Council instructed the Authority to assess all health 

insurance carriers “doing business in the District” whose gross receipts met or 

surpassed $50,000 in one year, without regard to whether these insurers offer plans 

on the Exchange (referred to by the parties as the “health carrier tax”). See Health 

Benefit Exchange Authority Financial Sustainability Amendment Act of 2015, 

D.C. Law 21-13, 62 D.C. Reg. 5946 (codified at D.C. Code §§ 31-3171.01, 31-

3171.03); D.C. Code § 31-3171.01(6). “These assessments shall be deposited in 

the Fund.” D.C. Code § 31-3171.03(f)(1). The Council set the health carrier tax at 
5

“an amount based on a percentage of [the insurer’s] direct gross receipts for the 

preceding calendar year.” D.C. Code § 31-3171.03(f)(1). It directed the Authority 

to “adjust the assessment rate in each assessable year” and required that the 

“amount assessed shall not exceed reasonable projections regarding the amount 

necessary to support the operations of the Authority.” D.C. Code § 31-

3171.03(f)(2)–(3). 

The insurers pursuing this appeal all do business in the District, but they 

have never sold a plan on the Exchange, do not offer “qualified health plans” 

within the meaning of the ACA, and consequently may not offer their insurance 

plans for sale on the Exchange. See 42 U.S.C. § 18031(d)(2)(B)(i). Pursuant to 

the health carrier tax, they were assessed by the Authority approximately $400,000

in the aggregate in 2016. The insurers paid their assessments under protest, 

requested reconsideration by the Authority, and, when those requests were denied, 

filed a petition in the D.C. Superior Court in January 2017, challenging the legality 

of the health carrier tax. 

The insurers filed suit in Superior Court because the federal courts 

foreclosed any challenge to D.C. Code § 31-3171.03(f) in that forum. In 2014, a

trade association of insurance companies sued the Authority, the District, and 
6

others in the United States District Court for the District of Columbia and raised 

various challenges to the statute, including that it was preempted by the ACA and 

violated nondelegation principles. Am. Council of Life Insurers v. District of 

Columbia Health Benefit Exch. Auth. (“ACLI I”), 73 F. Supp. 3d. 65, 73–74

(D.D.C. 2014), vacated, 815 F.3d 17 (D.C. Cir. 2016). The district court rejected 

all of the trade association’s arguments and upheld the statute. See id. at 111. The 

United States Court of Appeals for the District of Columbia Circuit vacated this 

decision and remanded for the District Court to dismiss the suit on jurisdictional 

grounds. Am. Council of Life Insurers v. District of Columbia Health Benefit Exch.

Auth. (“ACLI II”), 815 F.3d 17, 21 (D.C. Cir. 2016). The Circuit reasoned that 

D.C. Code § 31-3171.03(f) imposed a tax, and “exclusive jurisdiction over 

challenges to taxes imposed by the District” lay in the D.C. Superior Court. Id. at 

19. 

Relitigating many of the same issues that had been raised in federal district 

court, the insurers and the District filed cross-motions for summary judgment and 

proceeded on stipulated facts in Superior Court. Like the challenger in ACLI I, the 

insurers argued that the health carrier tax was preempted by the ACA and violated 

nondelegation principles. In ruling on the motions, the Superior Court adopted and 
7

incorporated the ACLI I opinion and granted the District’s motion for summary 

judgment and denied the insurers’ motion. This appeal followed.

II. Standard of Review

A trial court properly grants summary judgment where the record “show[s] 

that there is no genuine issue of material fact and that the moving party is entitled 

to judgment as a matter of law.” Bruno v. W. Union Fin. Servs., Inc., 973 A.2d 

713, 717 (D.C. 2009) (quoting Super. Ct. Civ. R. 56(c)). “In reviewing a trial court 

order granting a summary judgment motion, we conduct an independent review of 

the record, and our standard of review is the same as the trial court’s standard in 

considering summary judgment.” Id. (internal quotation marks omitted). Our de 

novo review extends to embedded constitutional claims, Walton v. District of 

Columbia, 670 A.2d 1346, 1352–53 (D.C. 1996), and matters of statutory 

interpretation, Tippett v. Daly, 10 A.3d 1123, 1126 (D.C. 2010) (en banc).

III. Preemption

We are asked to determine whether a provision of the ACA, 42 U.S.C. 

§ 18031(d)(5)(A), directing states to “ensure” that their Exchanges are “selfsustaining,” preempts the District’s health carrier tax under D.C. Code § 31-
8

3171.03(f)(1). “[P]ursuant to the Supremacy Clause, federal law may preempt 

state law, either expressly or impliedly.” Murray v. Motorola, Inc., 982 A.2d 764, 

771 (D.C. 2009). Express preemption exists where the federal statute “reveals an 

explicit congressional intent to preempt state law,” usually through a specific 

statutory provision. Id. (internal quotation marks omitted). Implied preemption 

occurs in one of two ways: (1) field preemption, “when federal law so thoroughly 

occupies a legislative field as to make reasonable the inference that Congress left 

no room for the States to supplement it,” id. at 772 (internal quotation marks 

omitted); or (2) conflict preemption, “where compliance with both federal and state 

regulations is a physical impossibility, or where state law stands as an obstacle to 

the accomplishment and execution of the full purposes and objectives of 

Congress,” id. at 771 (internal quotation marks omitted). 

The ACA contains no express preemption provision, and the insurers have 

not argued as much. The statute does contain, however, what could be called an 

express nonpreemption provision, which states “[n]othing in this title shall be 

construed to preempt any State law that does not prevent the application of the 

provisions of this title.”1

 42 U.S.C. § 18041(d). At the very least this provision 

 1

 Because the statute contains an express nonpreemption provision, it seems 

unnecessary to rely on a common law presumption against preemption as the 

(continued...)
9

bars a field preemption analysis. Conflict preemption is thus the only possible 

avenue of attacking D.C. Code § 31-3171.03(f)(1). The showing required for 

conflict preemption—that compliance with both laws is physically impossible or 

the state law, in effect, would obstruct the “accomplishment and execution” of 

Congress’s goals, Murray, 982 A.2d at 771—appears to align with the language of 

§ 18041(d) precluding preemption unless a state law “prevent[s the] application of” 

title 42 of the United States Code. In the absence of any argument by the parties 

that 42 U.S.C. § 18041(d) supplants or diverges from a traditional conflict 

preemption analysis, we examine whether the health carrier tax is preempted in 

accordance with those principles. 

 

(...continued)

District invites us to do. In any event, this presumption—which favors the

nonpreemptive interpretation of a statute where it is subject to multiple plausible 

interpretations, see, e.g., Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 

(2005)—is not consistently discussed or applied by courts. The presumption

appears to be most often invoked when federal law legislates in areas of 

“traditional state regulation.” Id. Although states have traditionally regulated 

insurance, see N.Y. State Conference of Blue Cross & Blue Shield Plans v. 

Travelers Ins. Co., 514 U.S. 645, 654–55 (1995), this does not describe the stateadministered Exchanges, which are the product of a federal initiative. Cf.

Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 347 (2001) (“[T]he 

relationship between a federal agency and the entity it regulates is inherently 

federal in character because the relationship originates from, is governed by, and 

terminates according to federal law.”). 
10

A. Plain Language

To conduct a conflict preemption analysis, we employ our usual tools of 

statutory interpretation and, as always, look first to the text of the federal statute. 

See N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 

514 U.S. 645, 655 (1995) (“[W]e begin as we do in any exercise of statutory 

construction with the text of the provision in question, and move on, as need be, to 

the structure and purpose of the Act in which it occurs.”); Kennedy v. City First 

Bank of D.C., N.A., 88 A.3d 142, 144–45 (D.C. 2014); see also Tippett, 10 A.3d at 

1126. 

The relevant provision, 42 U.S.C. § 18031(d)(5)(A), provides: 

In establishing an Exchange under this section, the State 

shall ensure that such Exchange is self-sustaining 

beginning on January 1, 2015, including allowing the 

Exchange to charge assessments or user fees to 

participating health insurance issuers, or to otherwise 

generate funding, to support its operation.

Each party tells us that this text plainly supports its position, with the insurers 

arguing, on the one hand, that the statute requires that an Exchange itself be selfsustaining without assistance from other sources of state funding, and the District 

claiming, on the other, that it requires a state to maintain a self-sustaining 
11

Exchange, without reliance on federal funding. We conclude that the plain text is 

ambiguous. 

The insurers focus on language in the statute that “the Exchange” be “selfsustaining,” which they interpret to mean that the Exchange “must produce funds

from its own operations only.” As a preliminary matter, we are unpersuaded by 

the insurers’ argument that, by using the term “self-sustaining” in § 18031(d)(5), 

Congress clearly intended to “incorporate the well settled meaning” of the term in 

the Independent Offices Appropriations Act (“IOAA”), 31 U.S.C. § 9701 (2018). 

First, the IOAA, which applies to agencies of the United States government, 31 

U.S.C. § 101, does not apply to the Authority, a state agency, D.C. Code § 31-

3171.02(a); see 42 U.S.C. § 18031(d)(1). Relatedly, it is not helpful to the insurers

that HHS invoked the IOAA when administering its Exchange pursuant to 42 

U.S.C. § 18041(c). Notice of Benefit and Payment Parameters for 2015, 79 Fed. 

Reg. 13,744, 13,746 (Mar. 11, 2014) (codified at 45 C.F.R. Parts 144, 147, 153, 

155, 156 and 158); see 45 C.F.R. § 155.20. Since HHS is subject to the IOAA’s 

requirements by virtue of its status as a United States agency, 42 U.S.C. § 3501, it 

must be “self-sustaining” pursuant to that statute, not by provision of the ACA, 

which is silent on whether the federal Exchange must be self-sustaining and 

separately imposes this requirement only on the state-run Exchanges. Compare 42 
12

U.S.C. § 18041(c)(1), with id. § 18031(d)(5). Second, the ACA as a whole does 

not mention or incorporate the IOAA, and, in particular, does not refer to it in 

relation to the Exchanges. Cf. Sullivan v. Stroop, 496 U.S. 478, 484 (1990). Third, 

the insurers have not articulated why we should read this term from the two 

statutes equivalently, as they neither relate to the same subject matter nor have the 

same purpose. See Holt v. United States, 565 A.2d 970, 975 (D.C. 1989). Fourth, 

the insurers have not put forward a persuasive argument for why “self-sustaining” 

is a “term of art” that incorporates IOAA case law. Air Wis. Airlines Corp. v. 

Hoeper, 571 U.S. 237, 248 (2014) (internal quotation marks omitted). The cases 

cited by the insurers purport to interpret the IOAA as a whole and do not 

emphasize that specific term, e.g., Nat’l Cable Television Ass’n v. United States, 

415 U.S. 336, 340–41 (1974), undercutting the premise that, as used in that statute, 

“self-sustaining” is a distinctive legal term of art. Even if “self-sustaining” is a 

term of art in the IOAA context, the insurers fail to explain why the ACA would 

look to the IOAA to define “self-sustaining” instead of one of the seventy-six other 

instances where this term appears in the United States Code, e.g., 15 U.S.C. 

§§ 1153, 8842 (2018) (Department of Commerce); 44 U.S.C. § 1903 (2018) 

(government printing); 45 U.S.C. § 745(a) (2018) (railroads). Fifth and finally, the 

reason federal courts have interpreted this language in the IOAA to prohibit federal 

agencies from levying taxes and to permit only the assessment of user fees—
13

concerns about constitutional separation of powers, Nat’l Cable, 415 U.S. at 340–

41—is inapplicable here. The Exchange, an executive agency, did not impose the 

health carrier tax on the insurers; the D.C. Council, a legislative body, enacted it.

The IOAA aside, the insurers’ plain-language argument has some force. 

Arguably, 42 U.S.C. § 18031(d)(5)(A) requires “Exchanges” to be “selfsustaining” in the sense that they must generate their own funding internally. As 

the insurers note, “the ordinary meaning of self-sustaining is ‘able to maintain 

oneself or itself by independent effort.’” Yet we are mindful that “a word in a 

statute may or may not extend to the outer limits of its definitional possibilities.”

Tippett, 10 A.3d at 1127 (internal quotation marks omitted). Here, we hesitate to 

read “self-sustaining” in such a limiting manner, given that the statute expressly 

places an obligation on the State to “ensure” that the Exchange is self-sustaining. 

Particularly when read in conjunction with the subsequent language that permits 

the state to authorize an Exchange “to charge assessments or user fees to 

participating health insurance issuers[] or to otherwise generate funding[] to 

support its operation,” this language suggests both that the state shoulders some 

responsibility for the solvency of the Exchange and that the state may authorize the 

Exchange to look beyond its own membership for funding. 
14

The insurers also argue that § 18031(d)(5)(A) cannot be read to authorize 

taxes on nonparticipating issuers because doing so would render the only example 

of self-sufficiency in the statute—“to charge assessments or user fees to 

participating health insurance issuers”—superfluous. But their argument that 

Exchanges may impose only the kind of user fee described in the statute misreads 

an example as a sole prescription and ignores other expansive language that, as 

noted above, also “includ[es],” in specifying the means by which a state may 

“ensure” that an Exchange becomes self-sustaining, “allowing the Exchange . . . to 

otherwise generate funding[] to support its operations.” Id. Relatedly, we reject 

the insurers’ argument that this single example limits the interpretation of how 

Exchanges could “otherwise” become self-sustaining. It may be evident in other 

statutes that lists of examples have such a limiting effect, but it is not apparent that

§ 18031(d)(5)(A)’s one exemplar was meant to do so. Cf. Begay v. United States, 

553 U.S. 137, 142 (2008) (explaining that the term “otherwise” placed in a statute 

after multiple examples “can (we do not say must) refer to a [thing] that is similar 

to the listed examples in some respects but different in others” (citation omitted)), 

abrogated on other grounds by Johnson v. United States, 135 S. Ct. 2551 (2015). 

For its part, the District argues that 42 U.S.C. § 18031(d)(5)(A) was enacted

to ensure that the state Exchanges eventually operated without federal funding and 
15

placed no constraints on the District’s ability to raise funds for the Exchange. The 

District largely ignores the “self-sustaining” statutory language highlighted by the 

insurers and focuses instead on the “otherwise generate funding” language 

discussed above that is in tension with the insurers’ interpretation. We cannot 

selectively read the text of the statute in either party’s favor. See Vining v. District 

of Columbia, 198 A.3d 738, 750 (D.C. 2018) (“[E]ach provision of the statute 

should be construed so as to give effect to all of the statute’s provisions, not 

rendering any provision superfluous.” (internal quotation marks omitted)). And 

we take the insurers’ point that if Congress had intended that result, it could have 

omitted the “including” clause specifying how an Exchange could generate

funding, and simply enacted a statute that provided that “the State shall ensure that 

its Exchange is no longer dependent on federal funds after January 1, 2015.” 

We conclude that the plain language of § 18031(d)(5)(A) is not so clear and 

unambiguous as either party suggests. Accordingly, we turn to our other tools of 

statutory interpretation to discern Congress’s intent. 

B. Other Tools of Statutory Interpretation

“The meaning . . . of certain words or phrases” in a statute “may only 

become evident when placed in context.” Tippett, 10 A.3d at 1127 (internal 
16

quotation marks omitted). Thus, when confronted with an ambiguous statutory 

provision, we turn to “the language of surrounding and related paragraphs” and the 

legislative scheme as a whole. Id. (internal quotation marks omitted); accord

Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751, 754 (D.C. 1983) 

(en banc) (“[A] statute is to be construed in the context of the entire legislative 

scheme.” (citation and internal quotation marks omitted)). 

The aim of 42 U.S.C. § 18031, entitled “Affordable choices of health benefit 

plans,” is to encourage states to set up their own health benefit Exchanges meeting 

minimum requirements, within a specific timeframe, by removing start-up costs. 

Section 18031(a) allows HHS to give states initial funding to establish their 

Exchanges. Section 18031(b) obligates states to establish an Exchange by January 

1, 2014, to be eligible to receive this funding. And § 18031(a)(4)(B) instructs HHS

not to award funding to states after January 1, 2015. In this context, 

§ 18031(d)(5)(A) is best read as a directive to states that, when federal funds 

expire, they must assume financial responsibility for the Exchange. We disagree 

with the insurers that, so understood, § 18031(d)(5)(A) is superfluous in light of 

§ 18031(a)(4)(B); rather, each provision is directed toward a different entity.
17

The titles in subsection § 18031(d)(5)(A)—for the entire subsection, 

“Requirements”; for paragraph (5) “Funding Limitations”; and for subparagraph 

(A) “No Federal funds for continued operations”—reinforce the understanding that 

Congress’s aim was to set out general structural requirements for Exchanges and 

one particular funding limitation: a sunset date for federal funding. See Murray, 

982 A.2d at 773 (considering section titles in federal statute in determining that it 

did not expressly preempt common law claims). At the same time, the flexibility 

and autonomy afforded to states in the provisions of § 18031 and the Subchapter in 

which it is located weigh against interpreting § 18031(d)(5)(A) as placing specific 

limits on state Exchanges’ available revenue streams once they lose federal

support. When listing the “[r]equirements” for state-run Exchanges, 42 U.S.C.

§ 18031(d), Congress outlined general, “minimum” functions and did not impinge 

on states’ prerogative either to provide additional services, id. § 18031(d)(4), or to 

impose additional benefit requirements on the qualified health plans offered on its 

Exchange, id. § 18031(d)(3). While Congress set “[f]unding limitations” on staterun Exchanges, it explicitly proscribed only one funding source—federal funds 

after January 1, 2015—and only one funding use—“wasteful use of funds.” Id.

§ 18031(d)(5). And Congress specifically highlighted its goal of granting states 

flexibility to operate their Exchanges in neighboring provisions governing 

Exchanges. See id. §§ 18041–18044 (title of this Part, “State Flexibility Relating 
18

to Exchanges”); id. § 18041 (title of this provision, “State Flexibility in Operation 

and Enforcement of Exchanges and Related Requirements”). Considered as a 

whole, this framework communicates that Congress intended to reduce barriers to 

the creation of state Exchanges and to specify only limited minimal requirements, 

permitting states to build Exchanges to suit their population and its needs. It 

follows that Congress would give states equal flexibility in determining how to 

fund their Exchanges. 

This interpretation of § 18031(d)(5)(A) aligns with the federal regulations

interpreting the same provision.

2 Cf. Wash. Convention Ctr. Auth. v. Johnson, 953 

A.2d 1064, 1076 (D.C. 2008) (noting that “although the federal authorities are not 

binding on us, we may properly look to [federal] regulations and case law as 

persuasive authority in interpreting our own [analogous] statute” (internal 

quotation marks omitted)). HHS, as a general matter, foresaw minimal 

“Federalism implications,” when setting standards for qualified health plans and 

requirements for Exchanges, because “States have choices regarding the structure 

and governance of their Exchanges” under the statute. Establishment of 

 2

 Federal regulations themselves may serve as a basis for preemption, see

Goudreau v. Standard Fed. Sav. & Loan Ass’n, 511 A.2d 386, 389 (D.C. 1986), 

but the insurers have not made such an argument in this case.
19

Exchanges and Qualified Health Plans, 77 Fed. Reg. 18,310, 18,310–11, 18,443 

(Mar. 27, 2012) (codified at 45 C.F.R. pts. 155–157). HHS’s regulations require 

states to seek agency approval of their Exchanges, see 45 C.F.R. § 155.105, and to 

submit a funding plan to obtain approval, see Establishment of Exchanges, 77 Fed. 

Reg. at 18,322, but HHS emphasized that the ACA “provides flexibility for 

Exchanges to generate support for continued operation in a variety of ways, such 

as through user fees,” id. at 18,323; see also id. (observing that “Exchange 

flexibility in funding ongoing operations is critical” and that “the Exchange has 

discretion to set parameters related to assessments”).3

 Concerns very similar to 

those raised by the insurers here were brought to HHS’s attention—including 

comments “ma[king] recommendations regarding the types of issuers that should 

be subject to any assessments established by the Exchange,” with some specifically 

requesting a mandate that issuers offering “excepted benefit plans[] be excluded.” 

 3

 The insurers argue, however, that when HHS subsequently commented 

that “Exchanges will be financially self-sustaining with revenue sources at the 

discretion of the State,” Establishment of Exchanges, 77 Fed. Reg. at 18,443, HHS 

meant that “operating an exchange would be costless for states.” We disagree. In 

context, the statement quoted by the insurers reflects HHS’s judgment that the 

“flexibility” afforded to states by the ACA preserved substantial authority in the 

states in the administration of a complex federal regulatory regime, both because 

“States are not required to establish an approved Exchange” to begin with, and 

because the states that chose to administer their own Exchanges would have 

“discretion” to identify “revenue sources” for the Exchange. Id. (citing Exec.

Order No. 13,132, § 6(b), 64 Fed. Reg. 43,255, 43,257–58 (Aug. 4, 1999)). 
20

Id. Nonetheless, HHS declined to “limit Exchanges’ options [in generating 

funding] by prescribing or prohibiting certain approaches.” Id. 

For all of these reasons, we conclude that § 18031(d)(5)(A) should be read 

as a directive to states to ensure that their Exchanges are self-sustaining after 

federal funding is discontinued, and not as a limitation on how states “generate 

funding” to support an Exchange’s operations, much less a prohibition on seeking 

revenue beyond the one example given, “charg[ing] assessments or user fees to 

participating health insurance issuers.” 42 U.S.C. § 18031(d)(5)(A). When 

§ 18031(d)(5)(A) is read in this manner, there is no conflict between it and the

District’s health carrier tax. The tax does not “stand[] as an obstacle to the 

accomplishment and execution of the full purposes and objectives of Congress.” 

Murray, 982 A.2d at 771. If anything, the tax, which raises necessary revenue to

enable the operation of the Exchange without federal funding, furthers Congress’s 

aim to expand the health care marketplace. Cf. Bostic v. District of Columbia 

Hous. Auth., 162 A.3d 170, 174–75 (D.C. 2017) (holding that District law was not 

preempted by federal law where District law supported the purpose of the federal 

law). Notably, the insurers have not pointed us to any such case where a court

rejected a funding mechanism similar to the District’s health carrier tax as 
21

preempted by the ACA. Accordingly, the insurers’ conflict preemption argument 

fails. 

IV. Nondelegation

The insurers also argue that the District’s health carrier tax, D.C. Code § 31-

3171.03(f)(1), in which the Council empowers the Authority to assess all health 

carriers that do business in the District, violates the nondelegation doctrine. 

Specifically, they claim that the Council impermissibly delegated legislative power 

to the Authority by failing to articulate “intelligible principles” to guide the 

Authority in levying its health carrier tax. We disagree.

The nondelegation doctrine, as applied to the United States government, “is 

rooted in the principle of separation of powers that underlies our tripartite system 

of [g]overnment,” and generally prevents one branch of government—executive, 

legislative, or judicial—from delegating its authority to another. Mistretta v. 

United States, 488 U.S. 361, 371–72 (1989). Balanced against this principle is the 

recognition that, for government to run effectively, the distinct branches must 

coordinate. Id. at 372. Therefore, the legislative branch may delegate some of its 

power to another branch so long as it provides “an intelligible principle to which 
22

the person or body authorized to exercise the delegated authority is directed to 

conform.” Id. (internal quotation marks omitted). 

Congress created the District’s government in “the familiar tripartite

structure,” Wilson v. Kelly, 615 A.2d 229, 231 (D.C. 1992), and the District’s 

legislature, the Council, “recognizes the principle of separation of powers in the 

structure of the District of Columbia government,” D.C. Code § 1-301.44(b) (2012 

Repl.). Though there is good reason to think the nondelegation doctrine applies to 

the District’s government, we have never held that it does. See Wilson, 615 A.2d 

at 231 (“[I]t is reasonable to infer from this tripartite structure and the vesting of 

the respective ‘power’ in each branch that the same general principles should 

govern the exercise of such power in the District Charter as are applicable to the 

three branches of government at the federal level.”). Since the District in its brief 

to this court “assumes the applicability” of the doctrine to our government, we too 

will assume for the purposes of our analysis that it applies to delegations by the 

Council to District agencies.

To articulate an intelligible principle to satisfy the nondelegation doctrine, 

the legislature must “clearly delineate[] the general policy, the public agency 

which is to apply it, and the boundaries of this delegated authority.” Mistretta, 488 
23

U.S. at 372–73 (internal quotation marks omitted). In evaluating nondelegation, 

our analysis is not limited to the specific delegated authority; we consider the 

statutory scheme as a whole, including the purposes articulated by the legislature, 

limits placed on the delegation, and any guidance given to the agency. See Skinner 

v. Mid-Am. Pipeline Co., 490 U.S. 212, 219–20 (1989); Mistretta, 488 U.S. at 374–

77. 

We conclude that the Council provided sufficient “intelligible principles” in 

D.C. Code § 31-3171.03(f)(1) to guide the Authority’s discretion in levying

assessments on health issuers to generate funds for the Exchange. The Council 

identified the agency responsible for implementing its directive, the Authority, and 

the specific group of health carriers to be assessed. D.C. Code § 31-3171.03(f)(1) 

(providing that the “Authority” shall assess those “health carrier[s] doing business 

in the District” only if their gross receipts from the preceding calendar year are

“$50,000 or greater”). It permitted the Authority to determine at what percentage 

to set the assessment, id., but only to the extent that the total amount assessed 

“shall not exceed reasonable projections” of what is “necessary to support the 

[Exchange],” D.C. Code § 31-3171.03(f)(2). See Skinner, 490 U.S. at 219 

(affirming delegation by Congress to Secretary of Transportation to set user fees 

according to specific criteria where the fee schedule must “bear a reasonable 
24

relationship to these criteria” (internal quotation marks omitted)). The Council 

mandated that the Authority deposit the assessments into the Fund, which it must 

administer “in accordance with generally accepted accounting principles,” and that 

the Authority use the proceeds “solely for the purposes set forth in this chapter and 

the costs of administering this chapter.” D.C. Code § 31-3171.03(a), (f)(2). The 

Council also prohibited the Authority from using any funds for promotional 

purposes, “[s]taff retreats,” or “[e]xcessive executive compensation,” D.C. Code 

§ 31-3171.04(a)(22)(D), and it required the Authority to “keep an accurate 

accounting of all activities, receipts, and expenditures” and submit “a report of the 

accounting” to the Council each year. D.C. Code § 31-3171.04(a)(22)(A). 

Furthermore, the Council provided guidance to the Authority by explicitly defining

its “duties and powers,” D.C. Code § 31-3171.04, and listing its “purposes,” D.C. 

Code § 31.3171.02(b). These provisions clarify that the Authority’s mission is to

facilitate individuals’ and small employers’ access to affordable and 

understandable health insurance and the ACA’s programs, tax credits, and costsharing; improve the health insurance market place in the District; and “[r]educe

the number of uninsured,” among other goals. D.C. Code § 31.3171.02(b); see

Mistretta, 488 U.S. at 374. “We have no doubt that these multiple restrictions . . . 

satisfy the constitutional requirements of the nondelegation doctrine.” Skinner, 

490 U.S. at 220.
25

V. Conclusion

Because we hold that the District’s health carrier tax, D.C. Code § 31-

3171.03(f)(1), is not preempted by a provision of the ACA, 42 U.S.C. 

§ 18031(d)(5)(A), and does not violate nondelegation principles, the judgment of 

the Superior Court is affirmed.

So ordered.