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Facts and Law on Solicitor General's Side

March 5, 2015
No, Professor Adler, General Verrilli did not “flub” his “objective proof” that King v. Burwell petitioners’ counsel Michael Carvin made up his claim that “Established by the State” got into the ACA as part of a fictitious “deal” with Senator Ben Nelson.
Supporters of the King v. Burwell challenge to the availability of ACA tax credits on federally facilitated state exchanges appear concerned by yesterday’s oral argument.  Understandably so, as the main takeaways were that Justice Anthony Kennedy was intensely preoccupied with the incompatibility of petitioners’ argument with “dynamics of federalism,” that Chief Justice John Roberts uncharacteristically declined to grill Solicitor General Donald Verrilli (or his counterpart, petitioners’ counsel, Michael Carvin) on interpretational and federalism issues ordinarily important to him, and that Justices Antonin Scalia and Samuel Alito consistently failed to throw off course Verrilli’s calm, fact-studded presentation.  Regrettably, one post-argument tack the challengers appear to be attempting is to call into question the veracity and, by inference, the integrity of Verrilli’s argument.  In this vein, Jonathan Adler included, in a Volokh Conspiracy post late yesterday spinning the argument petitioners’ way, an assertion that "The SG flubbed the drafting history [of a key ACA provision]," in that, "When the SG turned to explaining the origins of the phrase 'established by the state' as it appears in Section 1401 of the Act, he got his facts wrong." (Italics in original)  
In fact, however, Verrilli’s account of the facts in question is perfectly accurate.  As he told the Court, “The language . . .  was not the product of some last-minute deal.”  Rather, the four-word phrase was “the product of the Senate Finance Committee markup,” not something new that popped up during the final stages of the bill’s consideration on the Senate floor.  Professor Adler’s complaint about this – entirely accurate – account is that, during floor debate, a subsection was added to the bill which referenced in similar terms the Senate Finance Committee-originated provision containing the “established by the state” phrase.  Quite obviously, that reference in no way detracts from the accuracy of the Solicitor General’s account, or the fact that, as elaborated in the amici curiae brief supporting the Administration, filed by Constitutional Accountability Center on behalf of members of Congress and state legislators, the language in question  “. . . was included in the bill reported by the Senate Finance Committee on October 19, 2009, . . . and it was at no point [thereafter] a focus of controversy or even attention.”
More important, in the exchange with Justice Scalia that Adler here targets, Verrilli indisputably demonstrated, in his words, “objective proof” that petitioners’ counsel, Michael Carvin, has simply invented a transparent fiction with his recurrent claim that the “established by the state” phrase, on which petitioners’ case entirely depends, got into the ACA as part of a “deal” to win Senator Ben Nelson’s vote on the Senate floor.  Professor Adler neglects to mention the Solicitor General’s unanswered – and unanswerable – responses to Justice Scalia’s suggestion that the fictive Nelson deal could be “a plausible explanation . . . as to why [the “established by the state”] provision is [in the bill].”  Verrilli noted the complete absence of any “contemporaneous evidence, none whatsoever, that anybody thought” the ACA’s provisions, giving states the “option to set up their own Exchanges with State-by-State Federal fallbacks rather than a national system,” limited tax credits to exchanges operated by states themselves.  He noted that Senator Nelson himself (in a letter to Senator Robert Casey cited in the CAC legislators’ brief) “has made clear that he had no intention of the kind.”  Finally, Verrilli offered his “objective proof” – that “the provisions in the Act that were negotiated at the end to secure the necessary votes are in Title X of the Act . . . .” Directing the Court to the pages where those amendments are found, the Solicitor General observed that, were the justices to read them, they would find that “Not a single one has anything to do with the statutory language before the Court now.”  Q.E.D.