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A Surprising Omission from the Amicus Filings in King v. Burwell

February 5, 2015

Roughly 50 amicus curiae (“friend of the court”) briefs have been filed in King v. Burwell, the case about the availability of tax credits under the Affordable Care Act that the Supreme Court will be hearing next month.  But there’s one surprising omission from the list of amici: the U.S. Chamber of Commerce. 

The U.S. Chamber of Commerce is one of the most frequent filers of amicus briefs at the Supreme Court, regularly filing in more than a dozen cases each year and routinely winning the vast majority of those cases.  One might have expected that the Chamber would have something to say in King v. Burwell, one of the most significant cases on the Court’s docket this Term and one that could “gut” the ACA.  After all, the Chamber filed an amicus brief when the Supreme Court considered the constitutionality of the ACA in 2012, and the Chamber has not been shy in engaging in advocacy related to the law (initially opposing it, then calling for its repeal, and most recently calling for changes to “fix” it).

What explains the Chamber’s silence now?  We can’t know for sure, but one possibility is that the Chamber, a repeat player at the Supreme Court if there ever were one, simply doesn’t accept the argument made by the law’s challengers and doesn’t want to undermine its own credibility by making it.  After all, as members of Congress and state legislatures argue in an amicus brief filed by the Constitutional Accountability Center in support of the government in King, the text, history, and purpose of the ACA all make clear that the tax credits the law provides should be available to all Americans who qualify based on income, regardless of whether they purchase their insurance on a state-run or federally-facilitated Exchange.  The ACA’s opponents argue that the Court should ignore all of that and focus just on one four word phrase taken out of the context of the rest of the law.  But that’s just not the way statutory interpretation works.  As a group of prominent law professors explained in an amicus brief also filed in support of the government, “textualists do not read the words of a statute in a vacuum.”  Doing so, they said, “violate[s] textualism’s core tenets.” 

There’s another possible explanation, as well.  It may be that the Chamber really doesn’t want the opponents of the ACA to win because they realize how bad it would be for business.  Tellingly, not a single member of the business or the health care insurance community filed an amicus brief in support of the ACA’s opponents in King.  But a number of them did file briefs in support of the government, and all of those briefs made one central point: a ruling for the law’s opponents would be bad not only for the millions of Americans who would lose health insurance, but also for the health insurance system more generally.  Significantly, even though health insurers spent tens of millions of dollars in 2009 to oppose the ACA, America’s Health Insurance Plans (the national association representing 1300 health insurance providers) is supporting the government in King.  As AHIP explained in an amicus brief filed in support of the government, “[d]elinking the three integrated components of the ACA’s reform package in States with federally-facilitated insurance exchanges would create severely dysfunctional insurance markets in those 34 States, significantly disadvantaging millions of consumers in those States.”  Indeed, they say, “[i]t would leave consumers in those States with a more unstable market and far higher costs than if the ACA had not been enacted.”

Even though the Chamber is sitting this one out, there’s reason to think they might agree with AHIP and worry about the significant dysfunction and chaos in the insurance markets that will result if the challengers win and we’re left with only part of the ACA still standing.  Indeed, when the Court took up the constitutionality of the ACA’s “individual mandate” in 2012 in a case called NFIB v. Sebelius, the Chamber filed a brief addressing whether the rest of the ACA could function if part of the law were held invalid (in that case, the individual mandate), but the rest were left in place.  To the Chamber, the answer was simple: No.  As the Chamber explained it then, the various insurance reform provisions in the ACA were too interrelated for the law to function without the mandate.  Thus, the Chamber warned that “significant market disruptions . . . would result” if the Court invalidated the mandate and left the remainder of the law in place. 

Similar market disruptions would occur if the government loses in King: invalidating the subsidies on federally-facilitated Exchanges would disrupt insurance markets in the 34 states with federally-facilitated Exchanges.  Indeed, the Chamber made a similar point in its brief in NFIB, noting that “federal subsidies to help individuals purchase insurance through the Exchanges” is “one of the Exchanges’ central foundations,” and “if the subsidies do not work properly, then neither do the Exchanges.”  These are points that other members of the business community have tried to hammer home in their King briefs.  To be sure, the Chamber could have – but didn’t – file in support of the government, but affirmatively filing in support of the ACA might simply have been more than the Chamber could swallow, given its longstanding opposition to the law.  But its failure to file against the law in King may well speak volumes. 

When the Justices read through the amicus briefs in King, they may be surprised to see that one of the most frequent amicus filers at the Court had nothing to say.  But the Chamber’s silence may be less surprising than it initially appears.  A win for the ACA challengers in King would be bad for business.

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