How is it- my pedestrian noggin wants to know- that four people from the state of old Virginny- people who perhaps have about as much in the bank as I have, which if you must know is not more than my monthly social security and I know this because according to a landmark case-to-be now pending, as they say, before the highest court in the land,
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| RYAN'S WORLD: THERE'S THE MAKERS & THE TAKERS |
Lordy help us, these four, beginning with a guy named KING, cannot afford health insurance "but want to be declared ineligible anyway for the federal tax subsidies that would make insurance affordable for them", how is it they they CAN afford to have their case - and if I may, their cockamamie case, go all the way to the Supreme (keinahora) Court? As Linda Greenhouse writes (today):
"If the Supreme Court agrees with the challengers, more than seven million people who bought their insurance in the 34 states where the federal government set up the marketplaces, known as exchanges, will lose their tax subsidies. The market for affordable individual health insurance will collapse in the face of shrinking numbers of insured people and skyrocketing premiums, the very “death spiral” that the Affordable Care Act was designed to prevent."
Amici Curiae for those of you scoring at home is one of those important sounding Latin terms meaning "Friends of the Court" and these friends don't have to be actual participants in the case being heard and there are protocols in place as to how to go about being a friend, especially involving a Supreme Court case (someone has to read it to Judge Thomas- ) It is interesting but not surprising that the amici brief that was prepared for the health-denying senators and representatives was by a right-wing "lawyerly" organization in Washington, D.C. most noted for its opposition to affirmative action and well, people having healthcare for the first time.
In the
Supreme Court of the United States
______________
DAVID KING, ET AL.,v. Petitioners,SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL.,Respondents. On Writ of Certiorari to the United StatesCourt of Appeals for the Fourth Circuit ______________
BRIEF OF AMICI CURIAE SENATORS JOHN CORNYN, TED CRUZ, ORRIN HATCH, MIKE LEE, ROB PORTMAN, AND MARCO RUBIO; AND REPRESENTATIVES MARSHA BLACKBURN, DAVE CAMP, RANDY HULTGREN, DARRELL ISSA, PETE OLSON, JOE PITTS, PETER J. ROSKAM, PAUL RYAN, AND FRED UPTON IN SUPPORT OF PETITIONERS
Counsel for Amici Curiaei TABLE OF CONTENTS
Page TABLE OF AUTHORITIES.................................. iii
INTEREST OF AMICI CURIAE .......................... 1 SUMMARY OF ARGUMENT ............................... 3 ARGUMENT.......................................................... 5
I. Congress Has Not Granted the IRS Any Authority To Extend Premium Subsidies to Health Plans Offered Through an Ex- change Established by the Federal Gov- ernment. ...................................................... 5
a. The Plain Text of the ACA Demon- strates that Premium Subsidies Are Available Only Through an Ex- change Established by a State ........ 5
b. The IRS’s Expansive Interpretation of the ACA’s Subsidy Provision Vio- lates the Separation of Powers by Unraveling the Specific Compro- mises Crafted by Congress in Favor of an Interpretation Foreclosed by the Statutory Text............................ 10
c. The ACA Should Not Be Inter- preted To Delegate to the Executive a Decision with Such Broad-Rang- ing Consequences in So Cryptic a Fashion. ............................................ 22
ii
II. The IRS’s Regulation Was Not the Product of the Reasoned Decisionmaking Required of All Agency Action.................................... 30
CONCLUSION ...................................................... 33
INTEREST OF AMICI CURIAE1
Senator John Cornyn is the Senate Republican Whip. Senator Ted Cruz is the Ranking Member of the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights. Senator Orrin Hatch is the Ranking Member of the Senate Finance Com- mittee. Senator Mike Lee is the Ranking Member of the Senate Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer Rights. Senator Rob Portman is the Ranking Member of the Senate Finance Subcommittee on Fiscal Responsibility and Economic Growth. Senator Marco Rubio is the Rank- ing Member of the Senate Foreign Relations Subcom- mittee on East Asian and Pacific Affairs. Representa- tive Marsha Blackburn is the Vice Chair of the House Energy and Commerce Committee. Representative Dave Camp is the Chairman of the House Ways and Means Committee. Representative Randy Hultgren is a member of the House Committees on Financial Ser- vices and Science, Space and Technology. Representa- tive Darrell Issa is the Chairman of the House Over- sight and Government Reform Committee. Repre- sentative Pete Olson is the incoming Vice Chair of the House Energy and Commerce Subcommittee on En- ergy and Power. Representative Joe Pitts is the Chair- man of the House Energy and Commerce Subcommit- tee on Health.Representative Peter J. Roskam is the incoming Chairman of the House Ways and Means Subcommittee on Oversight. Representative Paul Ryan is the Chairman of the House Committee on the Budget. Representative Fred Upton is the Chairman of the House Committee on Energy and Commerce.
As elected representatives, amici have a power- ful interest in protecting the liberty of their millions of constituents. Amici have taken a strong interest in the implementing regulations of the Patient Protec- tion and Affordable Care Act (“ACA”) in general and the regulation at issue in this case in particular. Two amici were members of the Senate Republican caucus that originally united against the passage of the ACA. Another amicus, the Ranking Member of the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights, released a report that out- lines the current Presidential Administration’s re- peated attempts to ignore the ACA’s statutory text, in- cluding by adopting the interpretation at issue in this case. UNITED STATES SENATOR TED CRUZ, THE LEGAL LIMIT: THE OBAMA ADMINISTRATION’S ATTEMPTS TO EXPAND FEDERAL POWER—REPORT NO. 2 (Dec. 9, 2013), http://goo.gl/BX5oer (all websites last visited Dec. 29, 2014). Two amici are the Chairmen of the House Ways and Means and the House Oversight and Government Reform Committees, which produced a joint report documenting the results of a year-long in- vestigation that revealed that the Internal Revenue Service (“IRS”) failed seriously to grapple with the plain meaning of section 36B before issuing its regu- lation.
AND SUBSIDIES (Feb. 5, 2014), http://goo.gl/5thZ4J (“JOINT REPORT”).
SUMMARY OF ARGUMENT
The plain text of the ACA reflects a specific choice by Congress to make health insurance pre- mium subsidies available only to those who purchase insurance from “an Exchange established by the State.” 26 U.S.C. § 36B(c)(2)(A)(i). The IRS flouted this unambiguous statutory limitation, promulgating regulations that make subsidies available for insur- ance purchased not only through exchanges estab- lished by the States but also through exchanges estab- lished by the federal government. And the court below upheld this ultra vires action, straining to find ambi- guity in a perfectly clear statutory text so that it could defer to the IRS’s resolution of this purported ambigu- ity. This was error. As a panel of the Court of Appeals for the D.C. Circuit rightly concluded, “the ACA un- ambiguously restricts the section 36B subsidy to in- surance purchased on Exchanges ‘established by the State’ . . . .” Halbig v. Burwell, 758 F.3d 390, 394 (D.C. Cir.), judgment vacated and en banc reh’g granted, 2014 WL 4627181 (D.C. Cir. Sept. 4, 2014). (In grant- ing en banc review, the D.C. Circuit vacated the panel’s judgment, not its opinion, and that opinion at a minimum retains its persuasive value. See, e.g., Los Angeles Cnty. v. Davis, 440 U.S. 625, 646 n.10 (1979) (Stewart, J., dissenting); Action Alliance of Senior Cit- izens of Greater Phila. v. Sullivan, 930 F.2d 77, 83–84 (D.C. Cir. 1991)). Because Congress “has directly spo- ken to the precise question at issue,” that must be “the end of the matter.” Chevron, USA, Inc. v. NRDC, 467 U.S. 837, 842 (1984).
