A Guide to the (Overwhelmingly Powerful) Government-Side Briefs in the Affordable Care Act Case

In order to give a better sense of the content of the remarkable collection of briefs filed in support of the federal government in King v. Burwell, CAC has put together a comprehensive guide describing the arguments set forth in each of the 31 amici briefs along with links to the corresponding briefs.

This compilation helps flesh out what the National Law Journal has already recognized: there is a tremendous disparity in the briefs filed on the two sides in King.  As NLJ’s Marcia Coyle reports, “the challengers’ side” in King is dominated by “conservative-libertarian legal and political organizations” as well as “six states, a number of legal scholars and 15 Republican members of Congress,” whereas “[o]n the other side are national health, insurance, hospital, education and labor organizations; Nobel economists; 22 states; nearly [125] state legislators; and U.S. House and Senate Democratic leaders.”  In other words, King is supported by the usual conservative players, while the federal government’s position has attracted a diverse coalition of businesses, unions, scholars, government officials, and institutions – all fighting for the clearly correct interpretation that the Affordable Care Act permits tax credits on all Exchanges, state-run and federally-facilitated.

This contrast in filers for each side is reflected in a discrepancy in the quality of the arguments in the briefs themselves.  The government-side briefs powerfully combine arguments about the Act’s text, structure and history with quite dire warnings about how a ruling for challengers would harm both individual Americans and the American health care system and economy.  Meanwhile, the challenger- side briefs are mostly “me-too” arguments that recycle King’s wooden textual argument about the ACA along with their concocted and entirely false narrative about why Congress intended to deprive individuals of tax credits in states where the federal government is running the ACA insurance marketplace.  As Linda Greenhouse argues, to accept the challengers’ interpretation of the ACA, the Court would have to abandon its own precedents on how to interpret statutes and willingly take up arms in a “partisan war.”  As a result, Greenhouse concludes that “the [C]ourt itself is in peril” in the King case with its honor at stake alongside the fate of the ACA.  Happily, Greenhouse offers the Court a simple way of avoiding this blow to its institutional credibility: “read the briefs.”  We couldn’t agree more.

Read the comprehensive guide here.