Washington, DC – Congressional leaders – including House Democratic Leader Nancy Pelosi and Senate Democratic Leader Harry Reid – and more than 100 state legislators who served during the enactment and implementation of American Health Benefit Exchanges under the Affordable Care Act, filed a brief today in the case of King v. Burwell in the U.S. Supreme Court. The brief includes a critical, new rebuttal to petitioners in a letter from Senator Ben Nelson.

King is the latest in a line of legal challenges to the ACA, the most prominent of which resulted in victory for the Act in the U.S. Supreme Court in 2012. The challengers in King claim that the Act’s drafters in Congress crafted the law to provide essential tax credits to middle- and low-income Americans, but only on State-operated Exchanges, not Federal Exchanges now servicing 34 states. For this to be true, authors of the Affordable Care Act would need to have intended to sabotage the law with this hidden time bomb, one that would allow opponents of the Act to blow up the Act’s ability to help Americans afford health insurance, defeating the Act’s purpose of providing near-universal health coverage.

The brief filed by Constitutional Accountability Center on behalf of these Congressional and State leaders, shows how the text and structure of the Affordable Care Act refute the challengers’ perverse interpretation of the law, point by point, on every assertion that the challengers make about the intent of the Act’s authors – from elected officials who were themselves authors of the ACA. In short, it was never Congress’s intention that the tax credits only be available to individuals who purchase insurance on state-run exchanges, while Congress understood that the law gave states the option of establishing a state-run exchange or leaving that responsibility to the Federal government. As the brief states: 

Indeed, congressional amici know from their experience drafting and enacting this legislation that Congress imposed no such condition [that premium assistance credits and subsidies would be unavailable if their State failed to set up its own Exchange]. The purpose of the tax credit provision was to facilitate access to affordable insurance through all Exchanges, state-run or federally-facilitated, and to ensure that all Exchanges could work with other fundamental components of the law in order to provide universal access to insurance. It was not, as Petitioners would have it, to incentivize the establishment of state Exchanges above all else, and certainly not to thwart the overall statutory scheme and Congress’s fundamental purpose of making insurance affordable for all Americans.

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.

Just as significantly, state officials never perceived any such threat or understood that the statute could operate in the way the King challengers claim.  State governments debated many reasons for and against establishing a state-run exchange, but no state legislature on either side of the aisle raised the possibility that the failure to set up a state-run exchange would prevent the people of their states from enjoying the Act’s tax credits and subsidies.  The recently unearthed comments of Republican state officials including Wisconsin Governor Scott Walker (R-WI) are valuable additional evidence for this fact. To win this case, the King challengers would have to convince the court that all these state legislators were completely in the dark about the most important consequence of the decision whether or not to establish a state exchange.

The federal and state officials on this brief emphasize the ACA’s universally understood purpose of making affordable health insurance equally available to all qualified Americans, regardless of what state they live in.

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Resource: 

*  “Friend of the Court” brief of Members of Congress and State Legislators in King v. Burwell: http://theusconstitution.org/sites/default/files/briefs/King_Amicus_Brief.pdf 

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Constitutional Accountability Center (www.theusconstitution.org) is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history.

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