On Wednesday, as part of a brief filed by my organization, Constitutional Accountability Center, in King v. Burwell on behalf of state and federal legislators -- including Senate Democratic Leader Harry Reid and House Democratic Leader Nancy Pelosi -- we dropped a bit of a bombshell.
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The coalition includes the American Society of Newspaper Editors, the National Association of Broadcasters, the National Press Photographers Association and the Radio Television Digital News Association, as well as public interest groups Citizens for Responsibility and Ethics in Washington, the Alliance for Justice, Constitutional Accountability Center and openthegovernment.org.
Democratic Senate leaders and their advisers have repeatedly dismissed this theory as nonsense. And now it appears Nelson feels the same way. An amicus brief filed Wednesday by the Constitutional Accountability Center on behalf of the law's congressional architects references a letter, sent recently by Nelson to Sen. Bob Casey (D-Pa.) and available publicly, in which Nelson states unequivocally that he never intended to penalize states that opted not to create their own exchanges. “I always believed that tax credits should be available in all 50 states regardless of who built the exchange,” Nelson, who is now CEO of the National Association of Insurance Commissioners, writes. “The final law also reflects that belief as well.”
But the Democratic lawmakers who wrote and passed the law called that argument "so weak" and say they never meant to draw that kind of distinction, saying the law grants subsidies to "applicable taxpayers" and defines them by income, not by geography. "It would make no sense to hide such an important condition in such an obscure subsection," the lawmakers said in their brief, which was filed for them by the Constitutional Accountability Center.
The amicus brief by the Constitutional Accountability Center on behalf of Reid, House Minority Leader Nancy Pelosi and others, features an exchange of letters from Casey and Nelson. Casey asks Nelson to clarify whether he and other senators meant for the subsidies to be inducements to the states. Nelson said he wanted only for the exchanges to be tailored to the needs of each state.
The legislative record provides literally no evidence for the King challengers’ claim that Congress intentionally barred tax credits and subsidies for needy individuals in states with Federal Exchanges to encourage states to set up their own exchanges. Congress, the brief shows, had no such purpose and never communicated any such threat. In addition to reminding the Justices of the comments of Republican U.S. Rep. Paul Ryan (WI) from March 2010, for the first time in any brief, CAC provides direct evidence from former Senator Ben Nelson of Nebraska that the King challengers’ claims about his intentions and expectations for the availability of tax credits on the federal exchanges is entirely without merit.
But following an hourlong argument in the case, it appeared possible that the law might emerge intact—or at least the damage won't be as great as housing advocates have feared. Elizabeth Wydra of the Constitutional Accountability Center said, "A majority of justices today appeared to reject Texas' attempt to limit the reach of the Fair Housing Act."
In commemorating Martin Luther King Jr. Day, the nation collectively paused a moment to take stock of how far we have come in realizing equality and justice, and how far we have left to journey. Given that there is unquestionably far to go when it comes to fair housing opportunities and conditions, the Supreme Court shouldn't dishonor Dr. King's memory by removing one of the tools we have used to build bridges from the "islands of despair" of racialized poverty and segregation that Dr. King so powerfully decried.
CAC Chief Counsel Elizabeth Wydra appeared on Al Jazeera America to discuss developments at the U.S. Supreme Court, in a piece produced by Correspondent Lisa Stark.
Reaction to the high court's grant of review was swift. Judith Schaeffer, vice president of the Constitutional Accountability Center, called the justices' announcement "a key milestone" in the gay and lesbian movement for full equality. "The nation will soon see if Chief Justice Roberts is on the right side of the Constitution, not to mention the right side of history, when the court hands down its decision," she said.
The Loving case is likely the best guide. At the time, all but 16 states had eliminated such laws, Elizabeth B. Wydra of the Constitutional Accountability Center wrote on Friday. The majority of states had embraced equality. The rest eventually caught up.
Remarks in 2010 by Rep. Paul Ryan (R-WI) days before the enactment of Obamacare may weaken the premise of a major case before the Supreme Court called King v. Burwell, which threatens to cripple the health care law.... His remarks, which haven't received much attention until now, add to the overwhelming body of evidence that members of Congress, staffers, policy experts, and the media covering the health reform debate all understood the law to be providing for subsidies on the exchanges, whether state or federal.