In Halbig v. Sebelius, Michael Carvin’s claim about Senator Ben Nelson doesn’t hold up to scrutiny

On March 25, the United States Court of Appeals for the District of Columbia Circuit heard oral argument in Halbig v. Sebelius, the Right’s latest attempt to kill the Affordable Care Act in the courts.

To summarize the case briefly, the challengers claim that one piece of statutory text in a section of the Affordable Care Act, read in isolation, means that the federal government is not authorized to help low- and middle-income Americans pay for health insurance in the states that have decided not to set up their own insurance Exchanges – now some 36 states. This piece of text—“an Exchange established by the state”—appears in a section of the Act that establishes how the amount of available assistance will be calculated. The challengers also claim that Congress intentionally designed the law this way, in order to encourage the states to set up their own Exchanges. Never mind that the major purpose of the Act was to make health insurance more affordable and more available for more Americans.  (The case is explained in greater detail here, here and here.)

During the March 25 oral argument, attorney Michael Carvin, representing the Act’s opponents and trying to explain why the provision at issue reads as it does, placed an enormous amount of weight on a claim about Senator Ben Nelson’s alleged role in the drafting of the Affordable Care Act.  Judge Raymond Randolph, one of the three judges hearing the case, also invoked Nelson’s name and seemed satisfied with Carvin’s argument. (Commentators have since echoed this version of events, most recently William Levin writing at Powerline.)

However, the claim about Senator Nelson is simply wrong. According to Carvin, congressional Democrats inserted the piece of language at issue in Halbig as a sweetener to win moderate Nelson’s key 60th vote and secure a filibuster-proof majority in the Senate.  The problem with this claim?  The language was there from the beginning of the drafting process. It never changed, as we show below.

By way of introduction, here are the exchanges from the oral argument in which Carvin, with some supporting help from Judge Randolph, lays out his rationale to a skeptical Judge Harry Edwards, another member of the panel.   (28:30 in the audio.)

JUDGE EDWARDS: […] I’m trying to understand, because I’ve thought about this a lot, your argument makes no sense, who cares who sets up the exchange?


MR. CARVIN: The enactors of the Act —

JUDGE RANDOLPH: Ben Nelson cared.



MR. CARVIN: They couldn’t get to 60 unless Ben Nelson said we are not going to have a federally run exchange, we are going to implement basic principles of Federalism and the states are going to run those exchanges or I don’t vote for it and it doesn’t get passed.

JUDGE EDWARDS: You have a provision that says the state will do it, or the Feds will do it, what difference does it make who does it? Forget the subsidy.

MR. CARVIN: Because if you have the Feds running it it is the first step, to quote Senator Nelson, towards a federally run healthcare exchange. We want to ensure that we have state participation. You don’t have to speculate about whether Senator Nelson’s views prevailed because you can look at the Act[.]


Here’s how the argument is explained in Carvin’s brief. As evidence of Senator Nelson’s alleged influence, the brief cites a Politico article from January 2010. Note that date. (“Nelson: National exchange a dealbreaker.” January 25, 2010.)

Initially, there were some proponents of having the federal government establish and operate these Exchanges. But Congress heard extensive testimony criticizing that approach and urging instead that the Exchanges be run by states. […] And Senator Ben Nelson of Nebraska, whose vote was critical to the Act’s passage, called the “national exchange” approach a “dealbreaker,” expressing concern that such a regime would “start us down the road of … a single-payer plan.” Carrie Budoff Brown, Nelson: National Exchange a Dealbreaker, POLITICO(Jan. 25, 2010),

Now, here are the relevant provisions in each draft of the bill as it moved through the Senate. As the screenshots below show, the language referencing “an Exchange established by the state” was already in the bill by mid-October, 2009. It was never changed. It was never added to.

October 19, 2009 : This is the pertinent text of the proposed law, then called the America’s Healthy Future Act, as voted out of the Senate Finance Committee. (Read Bill) There is no assertion by the Act’s opponents—let alone any evidence—that Senator Nelson, who was not on the Finance Committee and did not participate in the bill’s drafting process, had any influence on this language at the early stage when it appeared.




















December 24, 2009: This is the relevant text of the proposed Patient Protection and Affordable Care Act, as passed by the Senate during its Christmas Eve vote. (Read Bill)





















March 23, 2010: And, finally, this is the relevant portion of the Patient Protection and Affordable Care Act as passed by Congress and signed into law by President Obama. (Read Law)

In short, the demonstrable legislative history of the ACA belies the claim that the language at issue in Halbig was inserted in exchange for Senator Nelson’s vote.  (Just as an aside, and as observers may remember, Nelson’s vote wasn’t even needed in the end. Even the Politico article that Carvin himself cites indicates that Nelson’s influence was already waning by late January.)  More broadly, of course, and as we discuss in our amici brief in Halbig filed on behalf of the congressional champions of the ACA, the Act’s opponents have presented no evidence that Senator Nelson or any other Member of Congress ever described the law as working in the absurd way they suggest.

In sum, Carvin’s argument about Senator Ben Nelson gets the politics, the policy and the legislative history wrong. No matter how much podium-pounding went into the delivery of this story on March 25, the evidence does not bear it out.



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