CEI Responds to Government’s Brief in SCOTUS Obamacare Subsidies Case

The government filed its brief late Wednesday in the U.S. Supreme Court case reviewing the Obamacare exchange-subsidies issue, King v. Burwell. General Counsel Sam Kazman of the Competitive Enterprise Institute (CEI), which is coordinating and funding the case, responds to the government’s argument regarding the case’s key issue about exchanges “established by the state.”

“The government takes an incredibly carefree approach to the English language by arguing the text of the Obamacare law plays second fiddle to the law’s alleged overriding purpose,” said Kazman. “By claiming the phrase ‘established by the state’ reflects ‘style and grammar,’ the government argues ‘establish’ is no longer a verb; it's an ornament.”

According to the government’s brief, the statute's phrase “established by the state” only identifies the exchange in a particular state and “reflects style and grammar,” not a substantive limitation on the type of exchange. 

“We should be thankful the government hasn't applied this approach to our nation’s Constitution, where the verb ‘establish’ appears six times, beginning with its very first sentence: ‘We the People of the United States, in Order to form a more perfect Union, establish Justice,’” said Kazman.

The government's brief also demotes Obamacare architect Jonathan Gruber to a new level of anonymity. 

“While the government heavily cited Jonathan Gruber’s work in its previous filings in the King and Halbig cases, he now gets only half of one footnote,” said Kazman. “And his famous three-legged stool metaphor, which played a prominent role in the Halbig dissent, has now been replaced by the innocuous phrase ‘three interdependent reforms.’”

The U.S. Supreme Court will hear oral arguments in King v. Burwell on March 4, 2015.


>> Read the government’s brief on the merits here.
>> Read the petitioners’ opening brief on the merits here.
>> All court documents related to the King and Halbig cases can be found at cei.org/Obamacare.