In a post on his blog yesterday,  Josh Blackman impugns (as  “opportunistic”) the motivation and appropriateness of an amici curiae brief recently filed by CAC on behalf of key congressional architects of the Affordable Care Act.  Blackman makes several wild swings, so wide of the mark as to require a brief corrective response.   The case is Halbig v. Sebelius, in which ACA opponents at Cato and the Competitive Enterprise Institute have appealed District Judge Paul Friedman’s January 15 dismissal of their claim that the ACA bars premium assistance tax credits and subsidies to needy individuals, in states where the health insurance exchange is operated by the federal government, rather than by the state government.  (At a couple of points, Blackman seems to suggest that these cases target the constitutionality of the ACA.  To be sure, ACA opponents have invested intense hopes and considerable resources in this litigation because they believe it has the potential “to sink Obamacare,” equivalent to a constitutional challenge.  But their argument is about statutory interpretation, not the Constitution. And, of course, ACA opponents famously lost their constitutional challenge to the Act in the Supreme Court.   ) 

First, the issue addressed by our brief – Congress’ intent and purpose in enacting the ACA’s premium assistance provisions – was put on the table by the ACA opponents themselves in their challenge to the Administration’s interpretation of the law; they hinge their case on a contention that Congress “intentionally and purposefully” limited premium assistance to state-run exchanges, as a “carrot-and-stick” device to incentivize states to set up their own exchanges.  It is perfectly appropriate that the architects of the law respond to this fictive construct of their intent – a mischaracterization for which Judge Friedman found “that there is no evidence in the statute itself or in the legislative history,”  and which, in a similar case, Judge James Spencer of the Eastern District of Virginia, on February 19, likewise dismissed. Judge Spencer, a Reagan appointee, held that “there is no evidence in the legislative record that the House, the Senate, any relevant committee of either House, or any legislator ever entertained this idea.”  As did both judges, in our brief, the architects of the ACA refute ACA opponents’ baseless characterization of their “intent and purpose,” exclusively by marshalling the statutory text, structure, and the legislative record.  None of the arguments in the brief constitutes after-the-fact revision of the legislative history. 

Second, Blackman inaccurately asserts that the legislators’ brief seeks to trump the relevant statutory text with contradictory (implicitly, subjective and revisionist) legislative history.  But that is the opposite of what Judge Friedman and Judge Spencer held, and what our appellate amici brief argues.  Both district court decisions – the only decisions yet to evaluate this legal challenge to the ACA’s exchange regime — stressed that “courts have a duty to construe statutes, not isolated provisions.”  When all relevant ACA provisions are taken into account, their analysis concluded, the text “unambiguously” supports the Administration.  That is the reasoning that our brief supports.

No doubt because the ACA opponents behind these lawsuits anticipated that judges would spot this fatal flaw in their purely textual argument, they introduced, and heavily rely on, their upside-down claim about Congress’ intent and purpose.  The committee chairs and Leaders Reid and Pelosi who signed our brief are in fact uniquely positioned to confirm the soundness of Judge Friedman’s (and Judge Spencer’s) rejection of that claim.