Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS
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U NUM L IFE I NSURANCE C OMPANY OF A MERICA ET AL
. , A PPELLANT S ,

v. D ISTRICT OF C OLUMBIA , A PP ELLEE
.

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 , 201 9 Decided September 24, 2020 ) Carl Erdmann , with whom Chris Bowers and Nathan Wacker were on the brief, for appellant s . L o ren 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 Mar y L. Wilson , Assistant Attorneys General, were on the brief, for appellee. Before B ECKWITH and E ASTERLY , Associate Judges , and K RAVITZ , Associate Judge , Superior Court of the District of Columbia

. *

* Sitting by designation pursuant to D.C. Code § 11

- 707(a) (2012 Repl.).2
E ASTERLY , Associate Judge : As part of the comprehensi ve 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 incenti ve to take part in a new health insurance marketplace and establish health benefit exchanges where individuals and small business es could more easily purchase plans meeting minimum federal requirements

. After the ACA’s enactment, the District of Columbia Council establish ed 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 amou nt of business in the District

. See D.C. Code §§ 31

- 3171.01(6), 31

- 3171.03(f)(1) (2016 Repl.). A group of i nsurers 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 , wh ich do es 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 violat ed the nondelegation doctrine as applied to the Distri ct’s government

. The trial court rejected these arguments and granted the District summary judgment.
We uphold the District’s law against the i nsurers’ challenge and affirm

.3
I. Facts and Procedural History
Among other reforms, the ACA establish ed Ame rican 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 Exch anges themselves, so long as the E xchange was a government agency or nonprofit and met other minimum requirements , such as maintaining an internet website through which individuals could enroll and a toll

free 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. §§ 300gg

63, 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 E xchanges 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 Exchange4
is self

- sustaining

. . . , including allowing the Exchange to charge assessments or user fe es 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 Dis trict of Columbia Health Benefit Exchange Authority (“Authority”) to oversee and implement it

. See Health Benefit Exchange Authority Establishment Act o f 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

- 3171.0 3(a). To fund the Excha nge, 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 Financia l Sustainability Amendment Act o f 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 asse ssments shall be deposited in the Fund. ” D.C. Code § 31

- 3171.03(f)(1). The Council set the health carrier tax at5 “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). I t directed the Authority to “adjust the assessme nt 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 i nsurers paid their assessments under protest , requested reconsider ation by the Authority, and, when those request s were denied, filed a petition in the D.C. Superior Court in January 2017, challenging the legality of the health carrier tax

.

The i nsurers filed suit in Superior Court because the federal courts foreclose d 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 , and6
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 vio lated 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. T he 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 i nsurers and the District filed cross

- motions for summary judgment and proceeded on stipulated facts in Superior Court

. Like the challenger in ACLI I , the
i nsurers argued that the health carrier tax was preempted by the ACA and violated nondelegation principles. In ruling on the motions, t he Superior Court ado pted and7 incorporated the ACLI I opinion and granted the District’s motion for summary judgment and denied the i nsurers’ 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 gra nting 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 p rovision of the ACA, 42 U.S.C. § 18031(d)(5)(A), directing s tates to “ensure” that their Exchanges are “self

sustaining,” 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 p reempt state law, either expressly or impliedly.” Murray v. Motorola, Inc. , 982 A.2d 764, 771 (D.C. 2009). E xpress preemption exists where the federal statute “reveals an explicit congressio nal intent to preempt state law, ” usually through a specific
sta tutory 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 , ” i d . at 771 (internal quotation marks omitted).

T he ACA contains no express preemption provision , and the i nsurers have not argued as much. T he statute does contain , however, what could be called an
express non preemption 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
b ar s a field preemption analysis. Conflict preemption is thus the only possib le 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 eff ect, 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” titl e 42 of the United States Code

. I n the absence of any argument by the parties that 42 U.S.C. § 18041(d) supplants or diverges fr om 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 o r 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 Shiel d Plans v. Travelers Ins. Co. , 514 U.S. 645, 65 4

– 5 5 (1995) , this does not describe the state

administered 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 b etween 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. 6 45, 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 Ja nuary 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 tell s us that this text plainly supports its position , with the i nsurers arguing, on the one hand, that the statute requires that an Exchange itself be self

sustaining without assistance from other sources of state funding , and the District claiming, on the other, that it requires a state to maintain a self

- sustai ning11 Exchange, without reliance on federal funding

. We conclude that the plain text is ambiguous

.

The i nsurers focus on language in the statute that “ the Exchange ” be “ self

sustaining , ” which they interpret to mean that the Exchange “ must produce funds from its own operations only .” As a preliminary matter, w e are unpersuaded by the i nsurers’ 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 Indepe ndent Offices Appropriations Act (“IOAA”), 31 U.S.C. § 9701 (2018). First, t he 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. § 18 031(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 a t 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 E xchange must be self

- sustaining and separately imposes this requirement only on the state

- run Exchanges

. Compare 4212 U.S.C. § 18041(c)(1), with id. § 18031(d)(5). Second, the ACA as a whole doe s 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 i nsurers have not articulated why we should read this term from the two statutes eq uivalently, 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 i nsurers 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. 2 37 , 248 (2014) (internal quotation marks omitted)

. T he cases cited by the i nsurers 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, t he insu rers 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). F ifth and f inally, 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

. T he Exchange , an executive agency, did not impose the health carrier tax on the i nsurers; the D.C. Council , a legislative body, enacted it.

Th e IOAA aside, the i nsurers’ plain

- language argument has some force. Arguably, 42 U.S.C. § 18031(d)(5)(A) requires “Exchanges” to be “self

sustaining” in the sense that they must generate their own funding internally

. As the insurers note, “the ordinary m eaning of self

- sustaining is ‘able to maintain oneself or itself by independent effort.’” Y et 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 quotat ion 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 “ensur e ” 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 sh oulders 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 i nsurers also argue that § 18031(d)(5)(A) cannot be read to authorize
tax es 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
E xchanges may impose only the kind of user fee d escribed 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 a n Exchange become s self

- sustaining , “allowing the E xchange

. . . to otherwise generate funding [] to support its operation s . ” Id. Relatedly , w e reject the i nsurers’ 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 statu te 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, t he District argues that 42 U.S.C. § 18031(d)(5)(A) was enacted
to ensure that the state Exchange s eventually operated without federal funding and15 placed no con s traints on the District’s ability to raise funds for the Exchange. The District largely ignores the “self

- sustaining” statutory language highlighted by the
i nsurers and focuses instead on the “otherwise generate funding” language discussed above that is in tension with the i nsurers ’ interpretation. We cannot selectively read the tex t 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 gi ve effect to all of the statute’ s provisions, not rendering any provision superflu ous.” (internal quotation marks omitted)). And we take the i nsurers’ point that if Congress had intended that result, it could have omitted the “including” clause specifying how an Exchange could genera te funding, and simply enacted a statute that provid ed 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 ( internal16 quotation marks omitted) . Thus , when confronted with an ambiguous statu t ory 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 , entitl ed “Affordable choices of health benefit plans , ” is to encourage states to set up their own health benefit E xchanges 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
E xchanges

. Section 18031 (b) obligate s states to establish an E xchange 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 i nsurers 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 cont inued operations”

— reinforce th e understanding that Congress’s aim was to set out general struct ural requirements for Exchanges and one particular funding limitation : a sunset date for federal funding. See Murray , 982 A.2d at 773 (considering section titl es in federal statute in determining that it did not expressly preempt common law claims). At the same time, t he 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 d id 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 limitation s” on state

run Exchanges, it explicitly pro scribed 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 s tates flexibi lity to operate their E xchanges in neighboring provisions governing Exchanges. See id. §§ 18041

– 18044 (title of this Part, “State Flexibility Relating18 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 Exchange s and to specify only limited minimal requirements, permitting states to build Exchanges t o suit their population and its needs. It follows that Congress would give states equal flexibility in determining how to fund their E xchanges.

This interpretation of § 18031(d)(5)(A) aligns with the federal regulation s interpreting the same provision

. 2 Cf. Wash. Convention Ctr. Aut h . 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 , ” w hen setting standards for qualified health plans and requirements for Exchanges, because “ States have choices regarding the str ucture and governance of their Exchanges ” under the statute. Establishment of

2 Federal regulations themselves may serve as a basis for preemp tion, s ee 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 agen cy 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 t he ACA “ provides flexibility for Exchanges to generate support for co ntinued operation in a variety of w ays, such as through user fees , ” i d. 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 C oncerns very similar to those raised by the i nsurers 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 sp ecifically requesting a mandate that issuers offering “excepted benefit plans[] be excluded .”

3 The i nsurers argue, however, that when HHS subsequently commented that “Exchanges will be financially sel f

- sustaining with revenue sources at the discretion of the State,” Establishment of Exchanges , 77 Fed. Reg. at 18,4 4 3, HHS meant that “operating an exchange would be costless for states.” We disagree. In context, the statement quoted by the insurers refl ects 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 .” I d.

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

as a directive to states to ensure that their E xchanges are self

- sustaining after federal funding is discontinued, and not as a limitation on how states “generate funding ” to support an Exchange’s op erations, 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 r ead in this manner , there is no conf lict 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 r evenue to enable the operation of the Exchange wit hout 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
pree mpted 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 as21 preempted by the ACA. Accordingly, the i nsurers’ conflict preemption argument fails.

IV. Nondelegation

The i nsurers 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 t hat 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 bra nches 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 which22 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 princi ple 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 do es. 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 del egations 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 d elegated authority .” Mistretta , 48823
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 artic ulated 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 “intelli gible principles” in D.C. Code § 31

- 3171.03(f)(1) to guide the Authority’s discretion in levy ing 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 calend ar year are “$50,000 or greater ” ). I t 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 reasonable24 relationship to these criteria ” (i nternal 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 t he 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

- 31 71.04(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 defin ing its “duties and powers , ” D.C. Code § 31

- 3171.04, and list ing its “purposes , ” D.C. Code § 31.3171.02(b). These provisions clarify that the Authority’s mission is to faci litate individuals’ and small employers’ access to affordable and understandable health insurance and the ACA’s programs, tax credits, and cost

sharing; improv e the health insurance market place in the District; and “[r]educ e the number of uninsured , ” amon g other goals. D.C. Code § 31.3171.02(b); s ee Mistretta , 488 U.S. at 374. “ We have no doubt t hat 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

.