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Is King v. Burwell Really All About the Cornhusker Kickback?

By Carrie Severino | January 30th, 2015

Today’s Washington Post leaves one assuming that King v. Burwell turns on what retired Senator Ben Nelson was thinking during Obamacare’s passage – whether he understood the text of the law to provide subsidies only for states that set up their own exchanges or whether he assumed subsidies would be available in all 50 states in any event.

This argument was advanced as a straw man in an amicus brief by the Constitutional Accountability Center, who then debunked that interpretation based on a letter from Nelson stating that he believed the final law provided subsidies in all 50 states.  It’s interesting to note that Nelson didn’t actually sign on to the brief (17 current and former members of Congress did, along with a collection of state legislators), but he was apparently sufficiently willing to cooperate that he sent ahelpful letter which miraculously arrived only the day before the brief was due.

The problem is that the petitioners in the case don’t think their case turns on Ben Nelson’s subjective reading of the law, much less on an after-the-fact interpretation of his previous position laid out in a letter written to aid his fellow Democrats’ litigation position.  Nelson’s name only comes up once in the petitioners’ brief, and even then, only in the introductory statement giving an overview of the case and the passage of the law.  It is nowhere part of petitioners’ actual argument.

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