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.

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