After the fact legislative history and the “Cornhusker kickback”

Since the bouts of cancer suffered by Joan and me over the last several years, I have concluded that the Affordable Care Act (ACA) is a good thing as a matter of policy.* However, legally speaking, I am agnostic about the case pending in the Supreme Court, King v. Burwell. But that case does have a fascinating legal twist with a Nebraska connection that I briefly explore in this post.

ACA opponents say that the clear language of the law allows tax credits to qualifying low- and middle-income Americans who purchase insurance only on exchanges established by states. The tax credits are seen as essential to making the coverage affordable. The problem is, however, that only about a third of the states have created exchanges. Elsewhere, federal authorities have established the exchanges. Although the law says the subsidies go to those who purchase insurance on exchanges “established by the State,” the IRS has interpreted the law to mean Congress wanted all Americans who purchase through any exchange to get the credits.

So, the issue writ small is this: What do the words “established by the State” mean? Well, remember the so-called “Cornhusker kickback?” Senator Ben Nelson was unfairly pilloried, in my view, for demanding, so the Republicans said, a quid pro quo for his support of the ACA.  Here is what a local reporter wrote on that subject upon Mr. Nelson’s retirement:

With Nelson as a key holdout vote on the Patient Protection and Affordable Care Act, Senate Majority Leader Harry Reid made a deal with him to allegedly secure his vote, giving the Democrats the 60 votes needed to kill a Republican filibuster.

The deal included language giving Nebraska 100 percent federal funding of the Medicaid expansion indefinitely. It also included language allowing states to restrict funding for abortions under certain circumstances.

But the deal drew so much fire from critics — who said it amounted to Nelson selling his vote — that he asked Reid to remove the permanent Medicaid exemption from the legislation.

Kevin O’Hanlon, ‘Cornhusker Kickback’ part of Nelson’s Senate legacy, LINCOLN JOURNAL STAR (December 27, 2011).

Now, in a fascinating twist, Robert Barnes of the Washington Post reports that Senator Nelson has written a letter to the ACA supporters before the Court backing their position.** In a critically important Amicus brief is the reference to Nelson’s recent letter:

Senator Nelson wrote the cited letter in response to a letter from Senator Casey asking him about Petitioners’ assertions that “the [ACA] was intentionally designed to deny tax credits to people in states with federally facilitated exchanges in order to ‘induce’ the states into operating their own exchanges” and that it “was designed this way because [Senator Nelson] and other unnamed ‘centrist Senators’ insisted upon this structure.” Letter from Senator Robert P. Casey, Jr., to Senator E. Benjamin Nelson (Jan. 27, 2015) . . . . In response to this query, Senator Nelson explained that he “advocated . . . for flexibility to the states to establish state-based exchanges with a federal exchange as a backup,” but “[i]n either scenario – a state or federal exchange –our purpose was clear: to provide states the tools necessary to deliver affordable healthcare to their citizens, and clearly the subsidies are a critical component of that effort regardless of which exchange type a state chooses.” Nelson Letter 1-2.

Amicus brief by the Constitutional Accountability Center on behalf of Senate Minority Leader Harry Reid, House Minority Leader Nancy Pelosi and others, at pp 17-18 n. 20. (The full letter is here.)

It will be very interesting to see whether the Supreme Court accepts Senator Nelson’s after the fact legislative history. So far as I know, the history of legislation made after the legislation has passed, and while the meaning of the legislation is before the Court, has never been considered before. How the Court deals with Senator Nelson’s letter as a matter of legislative intent should provide grist for the law reviews for many years to come.


*I learned something else too. When it comes to the ACA, cancer and me and mine, I am very much the hypocrite. Despite my earlier oath of allegiance to self-reliance, without my government health insurance, Joan and I would have been eating dog food while the cancer was eating us.

**H/t to Howard Bashman and How Appealing.

26 responses

  1. The quote from the Amicus brief is all the more reason why the Supreme Court has to stick to the exact language of the law.

    And FYI, Ben Nelson is now the insurance industry’s top lobbyist. Self-interest?

  2. I think you are quite right Judge that, at least by SCOTUS, “the history of legislation made after the legislation has passed, and while the meaning of the legislation is before the Court, has never been considered before.” On the other hand, the issue of whether “after the fact” history should be considered has come up before. And not Nelson et al.’s benefit.

    So, as an aside, the Nelson letter raises an interesting tactical question (and potentially an ethical one, I’m not sure)–if you’re writing the amicus brief, do you front the below and try to distinguish or do you, say, use the Nelson letter to tell the best story you can, hoping it will persuade regardless of whether it can or will be formally considered? Grist for the bar….

    “Finally, reliance is put upon what is referred to as ‘subsequent legislative history’ in the form of statements by Congressmen during Oversight Hearings of the House Subcommittee on Transportation and Aeronautics on June 14, 1974, and on an amicus brief filed in this Court on behalf of 36 Congressmen. But post-passage remarks of legislators, however explicit, cannot serve to change the legislative intent of Congress expressed before the Act’s passage. See, e.g., United States v. Mine Workers of America, 330 U.S. 258, 282, 67 S.Ct. 677, 690, 91 L.Ed. 884 (1947). Such statements ‘represent only the personal views of these legislators, since the statements were (made) after passage of the Act.’ National Woodwork Manufacturers Ass’n v. NLRB, 386 U.S. 612, 639 n. 34, 87 S.Ct. 1250, 1265, 18 L.Ed.2d 357 (1967).”

    Blanchette v. Connecticut Gen. Ins. Corporations, 419 U.S. 102, 132 (1974).

  3. It seems eminently reasonable to me that when the challengers state in a brief that Senator X meant such-and-so when discussing the law during its passage, Senator X should at least be listened to when he tries to say “That’s not at all what I meant.” The possible self-interest of Senator X can be taken into account, but as the saying goes, that issue goes to weight, not admissibility. After all, we are talking about a Supreme Court merits brief from the challengers and an amicus brief in support of the defenders, so neither submission is from a dispassionate and neutral viewpoint; the advocacy part of the equation is already baked in.

  4. RGH,

    I am truly sorry to hear about you and your wife’s battle with cancer. I, like virtually everyone else, have had relatives who have waged battles against the Big C. Keep up your spirit. Stay strong. You WILL win!

    With respect to Nelson’s letter, I don’t see it making a lick of a difference in how the majority of the Justices decide the issue. Several of the Justices don’t give a hoot about contemporaneous legislative history. There is a snowball’s chance in h!@# that they will even look at a letter, written on the eve of oral argument, which purports to describe a single (albeit pivotol) legislator’s intent/understanding regarding the availability of subsidies.

    As you state, the ACA might be good policy. But I think it is on shaky legal grounds, at least with respect to the availability of subsidies for people making their purchase on

    I am going to stick with my prediction of a 5-4 opinion in favor of the petitioners.

    Be well,


  5. Julian,

    Thanks for your research. I was unaware of Blanchette. As both an ethical matter and a matter of tactics, I would be “up front” with the Court about Blanchette. In particular, I would not want to be grilled about “legislative history” by Justice Scalia on this subject without being totally forthcoming. Perhaps as Peter implicitly suggests below, Blanchette can be distinguished because Senator Nelson is arguably correcting what others said he must have intended when that in fact was not what he intended at all.

    If you want to drive yourself completely crazy, I wonder whether the dispute about what Nelson did, said and meant is a question of fact. But that is so far into the metaphysical weeds that the Court will probably avoid any discussion of the differences between fact, law and legislative history.

    All the best.


  6. I wouldn’t call you a hypocrite, especially considering the reasons behind your views. I am no big fan of the ACA, and I haven’t been one since it was passed.
    That said, I have come to the conclusion that, if there were a better way to do things, either the GOP or the private sector itself would have proposed that solution by now. As there has been no viable alternative put forth, I’m not convinced there is a better way at this point.
    What I see is that those who disagree with the ACA are making the case that a Single Payer system would have been the better route to go from the beginning. I never considered such as system before, but wrecking the current health care system may end up putting us in a single payer system anyway.

  7. FPG, I share your prediction, but that is because that prediction shares the political proclivities of the likely 5 votes just as the 4 prediction represents the political views of the 4. The 5 guys, not the hamburger makers, tend to adopt a relatively mechanical theory of interpretation, whereas the 4 adopt the view that the first duty of the interpreter is to make sense of the statute as a whole, which imposes methodological charity if a literal reading of a part destroys the whole. Which approach is the “legal” approach is a matter of debate, but I do not think constitutions and statutes ought to be read exactly like wills. Politics in the sense of sympathy for the statute’s goals will also play a role, but we are what we are. to paraphrase a famous nautical philosopher.

  8. I would not call the judge a hypocrite since likes most people able to pay medical bills, he has that ability to pay because of his employer. Rather his honesty in recognizing that that is not because of a peculiar virtue of his the uninsured lack is refreshing. ACA is not that much of a change in the current system of health care finance given the % of bill government already pays directly and indirectly through foregone taxes, and particularly the current medicare system.
    The problem with the market alternatives is that they would require turning health insurance into catastrophic health insurance by limiting what employers could provide. I doubt it would work, but to explain these plains is to kill them in politics..

  9. Judge, Who is going to give the Amicus time to argue? Legislative history never meant the kind of politics of passage not on the formal record; it was more stylized than that. In any event Ben today is not particularly good evidence of Ben’s thoughts yesterday. Legislative intent is a legal construct and the items used to create it are also legal artifacts, perhaps Davis’s ajudicative facts.

  10. repenting,

    I am not as cynical, or perhaps too naive.

    Whether or not I agree with the policy/political implications of their opinion, the four NFIB dissenters made a pretty convincing legal argument (based upon legal precedent) that the entire ACA is unconstitutional. And, I would add, I believe that the CJ saved the ACA by his tax-not-a-penalty argument based upon applicable legal precedent.

    Although the CJ’s saving construction most certainly had an effect on policy and can be seen by some (or many) as political, i.e., an attempt to ensure that the Court is not perceived as a political body which decides cases based on partisan politics, I believe that it was sufficiently based upon the law to withstand scrutiny.

    But, like everything in life, it is difficult for everyone, including Supreme Court Justices, from having their personal policy preferences or preconceived ideas from (subconsciously?) effecting their opinions and decisions.

    As you aptly stated, “we are what we are.”

  11. FPG After more than 42 years of telling students SCOTUS decisions are not based on partisan politics, the Robert years have shaken my faith, but I cling to it still. However jurisprudence if it is anything is a branch .of political philosophy. It is in that sense I use. I had thought the challenge to the ACA weak because of the tax cases before the decision. The approach taken by the majority on other issues had very little case law support, though the majority was galloping off in defense of its views of federalism, which are political but not necessarily partisan.

  12. I don’t know why anyone even pretends that we have courts of law in America any more. From the lowliest district court to the Supreme Court, even plainly written constitutional provisions are not safe from the judicial veto.

    It all comes down to whether Roberts tries to maintain the illusion of fealty to the rule of law, which is what happened in the first ACA case.

  13. And here, I thought you threw in the towel. I did. One has to be almost unfathomably naive to believe that this decision won’t be anything but political.

  14. Given that more than two million Americans have signed up for health ins. through exchanges, and 1.8 million of them did so through the federal marketplace* and the vast majority of enrollees (83%) have qualified for premium subsidies** there would be catastrophic damage to many individuals and the entire US economy if the federal subsidies were found illegal (which means they would have to be paid back).

    In bygone times, I think a version (or inversion) of Mill’s “harm principal” — would affect SCOTUS thinking, but with many Republicans still apparently determined to destroy the Obama presidency all bets are off, though I think Roberts must be feeling some kind of pressure.



  15. Anon. You always do such a nice job of demonstrating the difficulty in separating issues of Con Law from partisan politics.

  16. Okay. Let’s just let the President make law on his own or exempt millions of people from laws already passed. In King, if the IRS can just ignore the word “shall” then we are in a world of hurt.

    We are talking chaos here.

    King v. Burwell is not a close case for the intellectually honest. In fact, I haven’t seen a cogent argument supporting the circumvent of the word “shall.”

  17. Here’s what I don’t quite understand; why is Jonathan Adler (or Michael Carvin, lead counsel for King) a *better* source for what Ben meant yesterday than Ben is, such that we should listen to Michael and Jonathan but not Ben? It’s fine to be suspect of Ben’s self-interest or ulterior motives, but as I said in my other comment, those same concerns about self-interest and ulterior motives would seem to apply just as strongly to advocates for a particular side in a adversarial lawsuit.

  18. 1. Just legal argle bargle. No ambiguity to the word “shall.”
    Any other “shall” statute you would like to stand on its head by regulation?

    2. That part of the ACA was just a massive political miscalculation by the Dems. They thought the States would cave and build their own exchanges in consideration for the tax subsidy bribe. Given the fact that some states never got the software to work, it was a good decision.

  19. If you are teaching students that the Warren/Brennan/Douglas court was not political (heck, Warren was a politician), and that the Roberts court has suddenly introduced politics into the previously-pristine institution, then with respect your students should get a refund. The current court may well be political, but to deny the politics involved in prior courts shows that you are being political. FDR was having private political strategy sessions with a sitting Justice for crying out loud.

  20. HoyaSaxa, Only saw this today. Students probably owed a refund but not for that reason. Never denied politics have played a role in adjudication by SCOTUS, and there were cases from the Warren period that also tried my faith. Black, Burton, Minton, were all one time Senators and Vinson had been a member of the House. In fact the stream you entered involved criticism of my use of the word political. I do not think that a little partisanship in a reply on a blog should have made you cry outl loud, or question my academic integrity. Particularly since your partisanship was showing. Iris up so I better stop.

  21. Irish up, should have questioned your reading skills since I said partisan politics and you removed partisan, which totally distorted my prior remarks.

%d bloggers like this: