Former Sen. Ben Nelson
Former Nebraska Sen. Ben Nelson has been a key part of the legal challenge to subsidies under Obamacare, and figures prominently in the
King v. Burwell case before the Supreme Court. The Democrat had been a key holdout in the Senate during debate, and was insistent that states be given as much autonomy as possible under the federal law. That included separate state health insurance exchanges. The House Democrats' bill had one exchange, and it was largely Nelson's holding out that forced the state exchanges in the Senate bill and the eventual law. The
King plaintiffs are using Nelson's position to support their theory that Congress intended to withhold subsidies from the states unless they established their own exchanges, in an attempt to force states to do it.
They just lost the Ben Nelson argument.
Nelson, who announced his retirement in 2011, speaks for himself in a brief filed by Democratic congressional leaders and others.
"I always believed that tax credits should be available in all 50 states regardless of who built the exchange, and the final law also reflects that belief as well," Nelson wrote in a letter to Sen. Bob Casey (D-Pa.) who sought Nelson's view. […]
Nelson said he wanted only for the exchanges to be tailored to the needs of each state.
"In 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 responded.
That directly contradicts the brief filed by the lawyer for the Virginia plaintiffs in the case, who erringly spoke for Nelson in writing "[f]or Nelson and some other senators, it was important to keep the federal government out of the process, and thus insufficient to merely allow states the option to establish exchanges, as the House bill did. … Rather, states had to take the lead role, which, given the constitutional bar on compulsion, required serious incentives to induce such state participation." Now that Nelson has actually spoken for himself, there goes that argument.
His comments are submitted as part of a brief filed on behalf of 125 congressional and state officials, all of whom support the administration. The actual drafters of the legislation—and the key players like Nelson—have all insisted that their intent from the beginning was for subsidies to be available to everyone. The legislative record—including hearing and debate transcripts—shows literally no evidence to the contrary. The Congressional Budget Office record proves it. All the news reporting from the time the bill was being debated proves it. The IRS interpreted the law as Congress intended it to.
Supreme Court precedent, and just plain reading of the whole law, should lead the court to uphold the law. But precedent was thrown out the window long ago by the conservative activists on the court. It looks like it's going to be up to Chief Justice Roberts, again, to think about the legacy of this court.