Today’s Washington Post leaves one assuming that King v. Burwell turns on what retired Senator Ben Nelson was thinking during Obamacare’s passage – whether he understood the text of the law to provide subsidies only for states that set up their own exchanges or whether he assumed subsidies would be available in all 50 states in any event.
This argument was advanced as a straw man in an amicus brief by the Constitutional Accountability Center, who then debunked that interpretation based on a letter from Nelson stating that he believed the final law provided subsidies in all 50 states. It’s interesting to note that Nelson didn’t actually sign on to the brief (17 current and former members of Congress did, along with a collection of state legislators), but he was apparently sufficiently willing to cooperate that he sent a helpful letter which miraculously arrived only the day before the brief was due.
The problem is that the petitioners in the case don’t think their case turns on Ben Nelson’s subjective reading of the law, much less on an after-the-fact interpretation of his previous position laid out in a letter written to aid his fellow Democrats’ litigation position. Nelson’s name only comes up once in the petitioners’ brief, and even then, only in the introductory statement giving an overview of the case and the passage of the law. It is nowhere part of petitioners’ actual argument.
This straw man is just like one the government used in their response brief, claiming that petitioners “rely heavily” on Jonathan Gruber’s now-infamous comments regarding how the subsidy system was supposed to work. Gruber’s back-pedaling can’t undermine the petitioner’s argument because it’s focused not on anyone’s subjective view of the law, but on the text of the law itself. While Gruber’s comments merit twice the attention in petitioners’ brief that Nelson ’s did (i.e., two mentions), petitioners only use Gruber’s comments as one of four examples showing that legislative history (which the brief states is irrelevant anyway) is on petitioner’s side and not the other way around. So much for heavy reliance.
As Michael Greve has noted, the other side’s recourse to straw men is another sign of the weakness of the government’s position.
At the end of the day, King v. Burwell isn’t about what any one Member of Congress thought the law they were passing would say or entail. As I’ve explained before, the intent of Congress is discerned by looking at the text of the law it passed. The Petitioners’ opening brief summarized it well:
If the rule of law means anything, it is that text is not infinitely malleable, and that agencies must follow the law as written—not revise it to “better” achieve what they assume to have been Congress’s purposes.