Justice Antonin Scalia
The Supreme Court will meet Friday to
determine if they will hear an appeal of
King v. Burwell in its docket this year. That's one of the group of cases, including
Halbig that says four words in the Affordable Care Act preclude people who sign up for health insurance on the federal exchange from receiving federal subsidies to help pay their premiums. A favorable ruling from the Supreme Court would essentially gut the law, making insurance unaffordable for millions who signed up through Healthcare.gov.
Five of the lawmakers who were in on the drafting of the law, and thus know what its intent is, have filed an amicus brief [pdf] with the Court, and have also penned this op-ed in the Washington Post. Those members are Sens. Tom Harkin (D-IA) and Ron Wyden (D-OR)— chairmen of the Senate Health, Education, Labor and Pensions Committee and the Senate Finance Committee, and Reps. Sander M. Levin (D-MI), George Miller (D-CA.) and Henry A. Waxman (D-CA) who were chairmen of the House Ways and Means Committee, the House Education and Workforce Committee, and the House Energy and Commerce Committee, when the law was passed.
In a series of legal challenges, opponents have inaccurately argued that Congress intended to provide financial help only to Americans living in the 14 states that directly run their own health insurance marketplaces, not in the 36 states that delegated administration of their marketplaces to the federal government.
This interpretation is wrong. As members of Congress who shaped and debated the legislation, we want to set the record straight. […]
None of us contemplated that the bill as enacted could be misconstrued to limit financial help only to people in states opting to directly run health insurance marketplaces. In fact, as chairs of the three House committees that collectively authored the health-care reform legislation (Ways and Means, Energy and Commerce, and Education and the Workforce), three of us issued a joint fact sheet in March 2010 reflecting our intention that financial help would be available to consumers in the state marketplaces, whether the state were to run it directly or via the federal government.
On the Senate side, provisions from the bill reported by Sen. Harkin’s Health, Education, Labor and Pensions Committee were combined with provisions from the bill reported by the Finance Committee, of which the current chairman, Sen. Wyden, was a senior member. There, too, the final bill embodied our universal understanding that financial assistance would be available in every state.
They point out that the Congressional Budget Office, which analyzed the draft legislation to score it for costs came to the same conclusion. There is nothing in the legislative history of the law to suggest anything contrary to the Congress's intention to make subsidies available to everyone. Normally, legislative history and legislative intent are critical components justices consider when looking at federal cases. There's one glaring exception—
Justice Antonin Scalia—who has said that " "examining the entrails of legislative history" is a waste of time.
We could find out Friday how much influence Justice Scalia has on the full court. Remember, there's another federal appeals court considering one of these cases right now—the full D.C. Circuit is determining whether to overturn three judges on its panel who ruled in Halbig that subsidies could not be provided to people who bought insurance on the federal exchange. The full court is almost certainly going to overturn that decision. A normal Supreme Court would likely not act on King until they have a decision form the D.C. Circuit on Halbig. But we're not necessarily dealing with a normal Supreme Court.