Amicus Curiae Brief — King v. Burwell, 135 S. Ct. 475 (2014) (No. 14-114)

MICHAEL CONNELLY

Attorney for Amicus Curiae

No. 14-114

IN THE

Supreme Court of the United States

DAVID KING, ET AL., Petitioners,

Vv.

SYLVIA BURWELL, SECRETARY OF HEALTH AND

HUMAN SERVICES, ET AL., Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

Brief Amicus Curiae of Virginia State Delegates

Mark Berg, Bob Marshall, and David LaRock,

Virginia State Senator Dick Black, U.S. Justice

Foundation, Lincoln Institute for Research and

Education, Abraham Lincoln Foundation, Institute

on the Constitution, Conservative Legal Defense and

Education Fund, and Policy Analysis Center in

Support of Petitioners

HERBERT W. TITUS*

U.S. JUSTICE FOUNDATION Ww J. OLSON

932 D Street J L. MORGAN

Suite 2 JOHN S?>MILES

Ramona, CA 92065 ROBERT J..OLSON

WILLIAM 4 OLSON, P.C.

370 Maple Avenue West

Suite 4

Vienna, VA 22180-5615

(703) 356-5070

U.S. Justice Foundation

*Counsel of Record

December 29, 2014

wjo@mindspring.com

Attorneys for Amici Curiae

|

TABLE OF CONTENTS

Page

TABLE OF AUTHORMITINS §..2 kckce eeics. iii

INTEREST OF THE AMICI CURIAE pa es 1

IE oS ck wanma Hah e Res oe

SUMMARY OF ARGUMENT __.......... ww. a ees 10

ARGUMENT

1. THEIRS REGULATION IS ENTIRELY OUTSIDE

ANY POWER VESTED BY THE CONSTITUTION IN

THE PRESIDENT

Ae ee Cote haleua pia eS axe 12

A. Unpopular and Unworkable, ACA Has

Survived Only by the Obama

Administration’s Grant of a Series of

WN Dire ct aik eae bers Geet wns 12

B. The IRS Regulation Violates the

Separation of Powers Principle 15

C. The IRS Regulation is an Unconstitutional

Exercise of Prerogative Power . eta

I]. JUDGED AGAINST ANY ACCEPTED PRINCIPLE OF

STATUTORY CONSTRUCTION, THE

GOVERNMENT'S POSITION AND THE POSITIONS

OF THE JUDGES BELOW ARE UNSOUND AND

SHOULD BE RE!ECTED ee 21

ul

A. The Statute Clearly Limits Federal Tax

Credits to Those Purchasing from Exchanges

Created by the States ........ om hs 21

B. The District Court Erroneously Elevated

Legislative History Over and Against the

I EE ae eee ae eA 22

C. Section 36B Is Not Ambiguous ... 7 24

D. The IRS Regulation Cannot Be Justified on the

Ground of Undesirable

Consequences 28

E. The Sea Change in Congress since Passage

of the ACA Must Not Drive this Court’s

Decision ..... 4 4F YOR ATEN een

CONCLUSION ..... a . 35

lll

TABLE OF AUTHORITIES

Page

U.S. CONSTITUTION

Aeteese 1, Bettjem 1... 6 ke Gk hide Ue 17

Article I, Section 7, — 2. oceans . 19

Article I, Section 8, Clause 16. 17

Article I], Section 1 ee ase irre 15

Article I], Section2 . ...... 17

STA ES

26 U.S.C. § 36B ia Oe ee 15

Patient Protection and Affordable Case

Act (“ACA”), Pub. L. No. 111-148 . . . 3, passim

CASES

.5.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984) . . 26

Kendall v. United States ex rel Stokes, 37 U.S.

(11 Peters) 524 (1838) . .. .. : es

Francis v. Franklin, 471 U.S. 307 (1985) 34

Halbig v. Burwell, 758 F.3d 290 (D.C.

Cir. 2014). . . A ate . 29, 30

National Treasury — Rlaiees v. Nixon,

492 F.2d 587 (D.C. Cir. 1974) . 15

Oklahoma v. Burwell, 2014 U.S. Dist. LEXIS

139501 (Sept. 30,2014)... . -23,390,31,38

Printz v. United States, 521 U.S. 898 (1997) .... 28

Sundance Assocs., Inc. v. Reno, 139 F.3d 804

(10" Cir. 1996) . .. 34

United States v. Great Northern Ry. 267 U. S.

546 Chee os kaa oeeees 26

Util Air Regula tory Gro. v. EPA, 134 S.Ct. 2427

GeieG . 3 64 eee etek 26

iv

Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579 (1952) ee at Ue

MISCELLANEOUS

“Administration adds major exemption for

ObamaCare individual mandate,” Fox

News (Mar. 13, 2014) . kr ta

M. Cannon, “Congress’s Obamacare Waiver,”

National Review Online (Aug. 6, 2013)

M. Cannon and J. Adler, “The Illegal IRS Rule |

to Increase Taxes & Spending under

ObamaCare,” Testimony before Committee

on Oversight and Reform, U.S. House of

Representatives (Aug. 2, 2012) ae

L. Carroll, Through the Looking Glass (1871) .

Staff Report, Committee on Oversight and

Government Reform, U.S. House of

Representatives, Lois Lerner’s Involvement

in the IRS Targeting of Tax Exempt

Organizations (March 11, 2014) _ ..

T. Cruz, “The Legal Limit, Report No. 2” .

Z. Evans, “Who Gets an Exemption From

Obamacare?” Reason.com (Oct. 1, 2013) .

R. Fournier, “Why I'm Getting Sick of

Defending Obamacare,” National Journal

PC -. <s «2 «sa. éace'eae

J. Goldberg, “The Real Person of the Year,”

National Review (Dec. 17,2014)... .

T. Hartsfield and G-M. Turner, “42 Changes

to ObamaCare ... So Far,” Galen Institute

(Nov. 6, 2014) ......

P. Hamburger, “Are Health- Care Waivers

Unconstitutional?” National Review Online

(Feb. 8, 2011)

17, 18

14

12

31

35

13

Vv

P. Hamburger, Is Administrative Law

Unlawful? (Univ. of Chi. Press: 2014) . 13, passim

J. Healey, “The real story behind all those

Obamacare waivers,” Los Angeles Times

(Oct. 3, 2013) .. . -> oe

Oliver Wendell eves “The Theory of Legal

Interpretation” in Col r

(Dover sore sates 1920) .. . 23

E. Johnsen, “Pelosi: Of course I stand by my

‘we have to pass it so you can find out what’s

in it’ remark,” Hot Air (Nov. 18, 2013) .. . . 5

G. Kessler, “Did Obama exempt 1,200 groups,

including Congress, from Obamacare?”

The Washington Post (Oct. 16,2013) . .. . 13

G. Kessler, “Explainer: What Gruber meant

when he said ‘if CBO scored the mandate as

taxes, the bill dies,” The Washington Post

(Nov. 19, 2014) is «©

P. Klein, “Half of the Senators who voted for

Obamacare won't be part of new Senate,”

Washington Examiner, (Dec. 6, 2014)... 33

C. Krauthammer, “The Gruber Confession,”

The Washington Post (Nov. 13, 2014) . 5

“Mike Lee: Latest Obamacare delay is ‘lawless —

‘he is not an emperor,” — Examiner

es SG ED comecnvesss oe

“The Obama administration hes | a ‘mandate on

the health-care law, too,” The Washington

. f ,. SS 9 Serer ree Seay

“Obama Rewrites ObamaCare.” The Wall

Street Journal (Feb. 10,2014) . . rs

A. Scalia & B. Garner, Reading Law: The

I retation of Legal

(Thompson/West: 2012) ..... 25, 27, 29, 30

>»

vi

B. Shaprio, “Lawless: Obamacare and the

Imperial Government” .... . . .. ..

L. Tribe, “Comment,” in A. Scalia, A Matter

of Interpretation: Federal Courts and the

Law, 65-66 (Princeton U. Press, 1997) ... .. 24

4,5

INTEREST OF THE AMI TAE'

Mark J. Berg, M.D. is a member of the Virginia

House of Delegates, representing the 29‘ House

District. He practiced as an Emergency Department

physician for 13 years and as a primary care physician

for 10 years, retiring from practice in 2007.

Robert “Bob” Marshall is a member of the Virginia

House of Delegates, representing the 13" House

District since his first election in 1991. In 2010, he

was the Chief Patron of the Virginia Health Care

Freedom Act (HB 10’) which was passed by the

Virginia General Assembly and signed into law to

protect Virginians from the mandates in Obamacare.

Dave LaRock is a member of the Virginia House of

Delegates, representing the 33™ House District. He is

a businessman and a general contractor.

Richard “Dick” Black is a member of the Virginia

State Senate, representing the 13° Senate District,

and is a former member of the Virginia House of

Delegates. He served as a Marine combat helicopter

pilot in Vietnam, and retired as a Colonel serving at

the Pentagon in the office of the U.S. Army Judge

Advocate General. Earlier this year, Senator Black led

' It is hereby certified that counsel for the parties have consented

to the filing of this brief; that no counsel for a party authored this

brief in whole or in part; and that no person other than these

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

2

the fight to block Medicaid expansion during the

Special Session of the Virginia legislature.

U.S. Justice Foundation, The Lincoln Institute for

Research and Education, Conservative Legal Defense

and Education Fund, and Policy Analysis Center are

nonprofit educational organizations, exempt from

federal income tax under Internal Revenue Code

(“IRC”) section 501(c)(3). The Abraham Lincoln

Foundation for Public Policy Research, Inc. is a

nonprofit social welfare organizations, exempt from

federal income tax under IRC section 501(c)(4).

Institute on the Constitution is an educational!

organization.

These organizations were established, inter alia,

for educational purposes related to participation in the

public policy process, which purposes include programs

to conduct research and to inform and educate the

public on important issues of national concern, the

construction of state and federal constitutions and

statutes related to the rights of citizens, and questions

related to human and civil rights secured by law. Each

organization has filed many amicus curiae briefs in

this and other courts.

Some of these amici have filed amicus curiae briefs

in the following recent cases challenging the

Affordable Care Act, including three filed in this

Court:

3

- Virginia, ex rel. Kenneth T. Cuccinelli, IL, Attorney

General of Virgini la v. Kathleen Sebelius, 656 F.3d

253 (4 Cir. 2011).°

* Virgini rel. Kennet ) t

eneral of Virginia v. Kathl lius, No. 11-

420, On Petition for Certiorari (Nov. 3, 2011).*

D Ith an v. Florida

(consolidated with NFIB v. Sebelius, 567 U.S. __

132 S.Ct. 2566 (2012).°

Conestoga Wood Specialties v. Sebelius, 573 U.S.

___, 184 S.Ct. 2751 (2014).°

STATEME

The history of the Patient Protection and

Affordable Care Act’ (“ACA”) is, to put it bluntly, a

history of lawlessness. Shamelessly hatched “behind

closed doors,” political deal-makers inside the

3

http://www_lawandfreedom.com/site/health/VA v_Sebelius

Amicus.pdf.

4

http://www.lawandfreedom.com/site/health/VA_v_ Sebelius _

Amicus SC.pdf.

5

http://www.lawandfreedom.com/site/health/DHHSvFlonda

Amicus.pdf.

° Jiwww.law m.com/site/constitutio onestoga

%20Wo0d%20Amicus%20Brief pdf.

7 Pub. L. No. 111-148, 124 Stat. 119 (Mar. 23, 2010).

4

legislative and executive branches “rammed [ACA]

through Congress in record time.” See Petitioners

Reply to Brief in Opposition at 11. When finally

exposed to light, there could be no mistake, “the

passage of Obamacare ... relied on ... bribery ... to gain

the necessary votes” in the Senate of the United States

(B. Shapiro, “Lawless: Obamacare and the Imperial

Government”):

The bill originally included the so-called

Cornhusker Kickback ... to earn the vote of

Sen. Ben Nelson (D-NE).... Similarly, Sen. Bill

Nelson (D-FL) originally handed over his

Obamacare vote in return for avoiding cuts to

Medicare Advantage in Florida ... — the so-

called Gator-Aid payoff. Then there was the

Louisiana Purchase in which Sen. Mary

Landrieu (D-LA) effectively sold her

Obamacare vote in return for $4.3 billion in

Medicaid funds....” [Jd. (emphasis added). }

Equally hidden from view, unelected elites,

including the now infamous MIT economist Jonathan

Gruber,’ assisted in an effort to make ACA

“deliberately obscure and deceptive ... in order to get it

_ * http://goo.gV/1iQO9Q.

* “Touted by press and politicians alike as an objective and fair-

minded arbiter of health-care reform, the MIT economist was in

fact a warrior for the cause, invested emotionally, politically and,

as it turns out, financially through undisclosed consulting

arrangements. See J. Goldberg, “The Real Person of the Year,”

Nationa! Review (Dec. 17, 2014) http://www.nationalreview.com/

nod 4/print.

5

passed.” See C. Krauthammer, “The Gruber

Confession,” The Washington Post (Nov. 13, 2014).'°

“Lack of transparency,” Professor Gruber bragged, “is

a huge political advantage,” not only to fool the

“stupid[] American voter,” but also to manipulate the

nonpartisan Congressional Budget Office (“CBO”) into

scoring ACA’s controversial individual mandate as not

a “tax” (id.), thereby ensuring ACA’s passage. See G.

Kessler, “Explainer: What Gruber meant when he

said ‘if CBO scored the mandate as taxes, the bill

dies,” The Washington Post (Nov. 19, 2014)."'

While Professor Gruber has since backed off his

claim to be ACA’s “architect,” former House Speaker

Nancy Pelosi has never retracted her revealing

assertion as to how poorly the bill was understood by

her colleagues in March of 2010 that “[w]e have to pass

the bill so that you can find out what is in it.”

Instead, the former Speaker is still defending the

“legislative process”’* whereby a 2,700-plus-page bill

'’ http://goo.g/uKmCoS.

1

http://goo.gV/j2vitR.

'? E. Johnsen, “Pelosi: Of course I stand by my ‘we have to pass it

so you can find out what's in it’ remark,” Hot Air (Nov. 18, 2013),

http://goo.gi/sEbyVa.

‘* “Obamacare ... quickly passed [the House] without anyone

reading the final bill.... And Senate Majority Leader Harry Reid

(D-NV) rammed through a vote on Obamacare just before

Christmas 2009 to avoid blowback from the American people

when Senators went home for the holidays. Both Pelosi and Reid

used myriad procedural conjurings in order to pass the bill.” See

B. Shapiro, “Lawless: Obamacare and the Imperial Government,”

6

was squeezed through the Senate, rammed through

the House, and ceremoniously signed by the President:

[I]t took a great deal for us to pass this bill. I

said if we go up to the gate and the gate is

locked, we'll unlock the gate. If we can’t do

that, we'll climb the fence. If the fence is too

high, we'll pole vault in. If we can’t do that,

we'll helicopter in, but we’ll get it done. [J/d.]

Introduced in the House, the ACA began as H.R.

3590,'* the “Service Members Home Ownership Tax

Act of 2009.” The six-page bill stated its modest

purpose: to “modify the first-time homebuyers credit

in the case of members of the Armed Forces and

certain other Federal emp oyees....” Passed

unanimously by the House, the Bill was forwarded to

the Senate where Senator Harry Reid ripped away all

of its six pages, and replaced them with a bill 450

times its original length under the brand new name of

“Patient Protection and Affordable Care Act.” On

Christmas Eve, December 24, 2009, ACA was passed

by the Democrat-controlled Senate.”

Having shirked their solemn duty as legislators to

know the contents of a bill before voting for it,

members of Congress should not have been surprised

Breitbart (Feb. 11, 2014), http://goo.g)/1iQO9Q.

‘“* https://www.congress.gov/bill/111th-congress/house-bill/3590.

'S http://www.congress.gov/111/bills/hr3590/BILLS-111hr3590

eas.pdf.

7

by what has ensued. The Galen Institute reported

that, by 2014, “more than 42 significant changes

already have been made ... at least 24 [of which]

President Obama has made unilaterally....”— T.

Hartsfield and G-M. Turner, “42 Changes to

ObamaCare ... So Far” (Nov. 6, 2014)."® In the last

year of this cascade of changes, the Obama

Administration announced that the employer mandate

compliance deadline was extended a second time, from

2015 to 2016. This announcement triggered reactions

from across the political spectrum. The Wall Street

Journal, a long-time opponent of ACA, editorialized:

“ObamaCare” is useful shorthand for the

Affordable Care Act not least because the law

increasingly means whatever President

Obama says it does on any given day. His

latest lawless rewrite arrived on Monday as

the White House decided to delay the law’s

employer mandate for another year and in

some cases maybe forever. [“Obama Rewrites

ObamaCare,” The Wall Street Journal (Feb.

10, 2014) (emphasis added)."”}

A long-time supporter of the ACA, The Washington

Post has also slammed the President for his

“increasingly cavalier approach to picking and

‘© http://www.galen.org/newsletters/changes-to-obamacare-so-far/.

'” http://goo.pl/XbsOlv.

8

choosing how to enforce this law.”'” Another champion

of ACA, National Journal Editorial Director Ron

Fournier, headlined a biting editorial “Why I’m

Getting Sick of Defending Obamacare””’ that stated:

Not coincidentally, the delays punt

implementation beyond congressiona!] elections

in November, which raises the first problem

with defending Obamacare: The White

House has politicized its signature policy.

|Id. (emphasis added).]

Upon hearing of the latest ACA “waiver,” longtime

critic Charles Krauthammer observed:

This is stuff that you do in a banana republic.

It’s as if the law is simply a blackboard on

which Obama writes any number he wants,

any delay he wants....”° [Jd.]

Utah Senator Mike Lee framed the issue as one of

separation of powers:

At some point the President of the United

States has to recognize that we are a nation

that operates under a system of laws. He is

'® “The Obama administration has a mandate on the health-care

law, too,” The Washington Post (Feb. 11, 2014),

'* http://goo.g/MHLS8FP.

»” http://goo.gl/y4s2Ha.

9

not an emperor. He is not a super-legisiature.

And he doesn’t have the power to just trump

what Congress does. [“Mike Lee: Latest

Obamacare delay is ‘lawless’ — ‘he is not an

emperor,” Washington Examiner (Feb. 10,

2014).*’]

Although the President has maintained that he is

simply exercising his discretion pursuant to his

constitutional obligation to “take care that the laws be

faithfully executed,” this duty does not “impll[y] a

power to forbid their execution.” See Kendall v. United

States ex rel Stokes, 37 U.S. (11 Peters) 524, 612-13

(1838). Indeed, the President’s expansive

interpretation of his power to faithfully execute the

law “would be vesting in the President a dispensing

power, which has nocountenance for its support in any

part of the constitution; and is asserting a principle,

which ... would be clothing the President with a power

entirely to control the legislation of congress, and

paralyze the administration of justice.” Id.

Against this highly politicized backdrop, this case

presents the question of not only whether one more

provision of ACA may be unilaterally waived, but also

whether a new provision for subsidies to a broad new

class of taxpayers can be read into the statute. The

rationale for the regulation is simple: the ACA statute

— as written by Congress — is at odds with what the

President now wants.

*! http://goo. gV/306lgP.

10

SUMMARY OF ARGUMENT

The Government views this case as a matter of

statutory construction — whether federal tax subsidies

for health insurance coverage apply only to those

persons who purchase insurance through an

“Exchange established by the State” under section

1311 of the ACA. In truth, the statute being so clear,

the question really is: Shall the statutory text be

applied, or instead disregarded to conform to the policy

wishes of the Executive Brancii?

This question has not reached the Court in a

political and constitutional vacuum. Birthed and

enacted into law by a process of political intrigue and

deception, the Obama Administration has adopted a

lawless strategy of ACA implementation, unilaterally

waiving or delaying various statutory requirements

under the guise of presidential discretion. Contrary to

his claim of discretion under his constitutional duty to

take care that the law be faithfully executed, the

President has instead exercised an unconstitutional

prerogative power, dispensing with explicit,

congressionally imposed deadlines, in violation of the

separation of powers principles and ministerial

practices contemplated by the Constitution.

The Government claims that the President —

under the rulemaking powers of the Internal Revenue

Service — may dispense with the clearly established

statutory rule that tax subsidies are available only to

persons who purchase health insurance in an

Exchange established by a State. This is an

unconstitutional usurpation of the legislative powers

11

vested by the Constitution solely in Congress. To

reach this result, the Government urges this Court to

ignore well-established rules of statutory construction.

This would be rule by bureaucratic fiat, not rule by

law.

Driven by politics, the Obama Administration has

adopted a strategy to save ACA from further

congressional scrutiny, by reading the ACA to reflect

a presidential policy, governed by congressionally

established means. The Government seeks to short-

circuit this constitutional process in order to save ACA

from any change by Congress, whose membership is

very different from the Congress that barely passed

the ACA just five years ago.

If the rule of law is to mean anything, this Court

must not sanction policies promulgated by an

unelected bureaucracy — like the IRS — in direct

contradiction of the written text of a duly enacted

statute. The ACA provision in question should be

interpreted according to the plain meaning of the

statutory text, rather than according to the Humpty-

Dumpty approach — “words mean what I want them

to mean” — urged by the Government.

12

ARGUMENT

I. THE IRS REGULATION IS OUTSIDE ANY

POWER VESTED BY THE CONSTITUTION

IN THE PRESIDENT.

A. Unpopular and Unworkable, ACA Has

Survived Only by the Obama

Administration’s Grant of a Series of

Waivers.

In ACA’s infancy, the Obama Administration

began to issue waivers. First in line were “politically

connected businesses,” including “restaurants and hip

nightclubs in former-Speaker Nancy ‘'osi’s

{congressional} district." Next were members of

Congress, who obtained a waiver protecting their

staffs from ACA-required health insurance coverage

that would have cost each member of Congress and

each staffer between $5,000 and $11,000 per year.”

These early waivers defused a key motivation to

reopen Obamacare. Id.

As the increase in real costs and less coverage of

insurance plans became more widespread, special

individual waivers proliferated in number until over

1,200 recipients, ranging from McDonald's to Goodwill

Industries, were given temporary waivers in order to

“ 72. Evans, “Who Gets an Exemption From Obamacare””

Reason.com (Oct. 1, 2013), http://goo.g/RJOJZW.

8 M. Cannon, “Congress's Obamacare Waiver,” National Review

Online (Aug. 6, 2013), http://goo.g/geVTN 1.

13

avoid having to reduce hours of already economically

strapped low-wage workers.** “[T]}he rul[ings] enabled

employers and their workers to keep [for a whole] year

the plans they had before the law was passed, even

though they didn’t meet the new [ACA] minimum

standards.” In short, “although [ACA] required so-

called mini-med insurers to provide guaranteed levels

of insurance, [HHS] gave waivers to favored

corporations, relieving them of the duty to meet the

regulatory and thus also the statutory levels.””

“The rest of us must obey the laws”*’ — until

further increases in ACA’s unpopularity produced an

across-the-board waiver for companies with 50 or more

full-time employees, delaying that mandate until 2015,

after the 2014 midterm elections.” Shortly after that,

again with an eye on the November 2014 elections, the

White House “added a mega-exemption that critics say

would allow virtually anybody to skirt” the infamous

** G. Kessler, “Did Obama exempt 1,200 groups, including

Congress, from Obamacare””’ The Washington Post (Oct. 16, 2013),

http:// tnP7.

* J. Healey, “The real story behind all those Obamacare waivers,”

Los Angeles Times (Oct. 3, 2013), http://goo.gl/Aok915.

26 See P. Hamburger, Is Administrative Law Unlawful? at 124

(Univ. of Chi. Press: 2014).

27 P. Hamburger, “Are Health-Care Waivers Unconstitutional?”

National Review Online (Feb. 8, 2011), http://goo.gl/FOxTUh.

** See “The Lega) Limit, Report No. 2,” pp. 1-2, by U.S. Senator

Ted Cruz, Ranking Member, Senate Judiciary Subcommittee on

the Constitution, Civil Rights, and Human Rights.

14

individual mandate requiring every American to get

government-approved health insurance or pay a

penalty to the IRS.”

As Columbia Law Professor Philip Hamburger has

perspicaciously observec:

When Americans are subject to severe

legislation, they can unite to seek its repeal.

All persons subject to a harsh law ordinarily

must comply with it and wil] therefore

cooperate to fight it. Waivers, however,

allow the executive to preserve such

legislation by offexing relief to the most

powerful of those who might demand

repeal, thereby purchasing their

nonresistance at the cost of other Americans.

Waivers thus shift the cost of objectionable

laws from the powerful to others, with the

overall effect of entrenching oppressive laws.

[Philip Hamburger, Is Administrative Law

Unlawful?, p. 127 (Univ. of Chi. Press: 2014)

(hereinafter “Hamburger’s Unlawful Law’)

(emphasis added).]}

Without a doubt, the Obama Administration has

employed “waivers to co-opt political support for [a]

politically insupportable law[].” See id.

* “Administration adds major exemption for ObamaCare

individual mandate,” Fox News (Mar. 13, 2014),

J} zl.

15

Such waivers, Professor Hamburger argues,

“revert to a particularly lawless mode of prerogative

power|,] [njot merely an extralegal lawmaking power,

[but] an extralegal power to undo the law without even

adopting extralegal legislation.” Jd. The duty imposed

on the President by 26 U.S.C. § 36B is decidedly not a

discretionary one subject to the President's

independent political judgment, but a ministerial one

subject to the rule of law. See, e.g., National Treasury

Employees Union v. Nixon, 492 F.2d 587 (D.C. Cir.

1974). By dispensing with the section 36B limit on tax

credits and subsidies to Exchanges established by the

States, the Obama Administration has done exactly

what Hamburger contends — unmade the law by an

extralegal “legislative” process in violation of the

Constitution.

B. The IRS Regulation Violates’ the

Separation of Powers Principle.

The Government would have this Court believe

that, by equating a fallback Exchange established by

HHS with an Exchange established by a State, the IRS

was exercising its ordinary interpretative powers

vested in the executive department by Article II,

Section 1. See Brief for Respondents in Opposition to

Petition for Certiorari (“Govt. Opp. Br.”) at 8, 10, 13,

17, 18, 24, and 29-31. In support of its position, the

Government has touted ACA as a measure with the

overriding singular purpose to ensure “affordable

(health) insurance to millions of Americans.” /d. at 13.

Thus, the Government insists that any interpretation

which interferes with “the Act’s stated objective of

16

ensuring ‘near-universal coverage” must be rejected.

Id. at 25.

Although the Government contends that this

purpose is expressly stated in ACA, at no point in this

litigation has the Government produced any specific

supporting statutory text. See, e.g., id. at 24. Indeed,

as pointed out in Petitioners’ brief on the merits, even

when directly challenged in the rulemaking process to

justify its authority, the IRS furnished no textual

support for its action; instead, it simply justified its

“interpretation” as generally “consistent with the

language, purpose, and structure of [26 U.S.C.]! section

36B and the [ACA] as a whole.” See Brief for

Petitioners (“Pet. Br.”) at 6-7.

However, as Petitioners have argued in their brief,

the Government may not ignore the specific text of

section 36B, which limits ACA tax credits and

subsidies to persons who purchase health insurance

through an Exchange established by a State:

[I]Jnvoking this amorphous “purpose” to

“construe” § 36B to mean the opposite of what

it says would not be legitimate interpretation,

but wholly lawless revision. [/d. at 33.]

Rather, as Petitioners have also demonstrated, by

creating “a new ‘subsidies-everywhere’ purpose,” the

Government would “defeat the Act’s clearly enunciated

purpose of encouraging state-established Exchanges.”

Id. Thus, Petitioners contend that the purported IRS

“\nterpretation” of section 36B is “simply a transparent

device to rewrite § 36B’s plain text”:

17

to elevate the Executive's policy preference

(subsidies everywhere) to the detriment of

Congress's policy of encouraging states to

establish Exchanges. Under this lawless

reasoning, the IRS could grant § 36B subsidies

to those who buy coverage directly from

insurers, instead of through an Exchange, in

light of Congress’s “purpose” to make al]

coverage affordable through federal subsidies.

Id. at 35.)

It is not within the powers vested in the President

to formulate by policy through executive action and,

then, by that same action to determine the manner in

which that policy will be executed. See Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). To

the contrary, Article Il, Section 2 of the Constitution

vests in the President only the power to execute the

law, not to make — much less remake — the law as

the IRS has done here. Instead, the power to make the

law is vested by Article I, Section 1 of the Constitution

in Congress. It is, therefore, for Congress, not the

President, to set the nation’s health care insurance

policy. And Article I, Section 8, Clause 16 vests in

Congress — not the President — the power to make all

laws that are “necessary and proper” to carry out the

policies of Congress. In short, both the objectives, and

the means to meet those objectives, belong to the

legislative branch, not the executive’ branch.

Youngstown Sheet & Tube at 588.

In setting up the insurance Exchange marketing

system, Congress set both the purpose of ACA and the

means by which that purpose would be carried out.

18

The IRS regulation would alter the means chosen by

Congress, overriding the statutory means in order to

better achieve the Obama Administration’s goal of

universal health care insurance coverage. ‘To

paraphrase Justice Black’s opinion in Youngstown, the

IRS regulation “does not direct that a congressional

policy be executed in a manner prescribed by Congress

— it directs that a presidential policy be executed in a

manner prescribed by the President.” Jd. at 588.

Moreover, by divesting Congress of its authority to

determine both the ends and means of a law, the IRS

regulation here is the product of the exercise of a

prerogative power totally foreign to the American

constitutional republic. See Hamburger’s Unlawful

Law at 50.

C. The IRS Regulation Is an Unconstitutional

Exercise of Prerogative Power.

According to the Government, in order to save the

ACA from total collapse, it was necessary for the IRS

to extend tax subsidies and credits to purchasers of

health insurance in all Exchanges, those established

by the States and those established by HHS. See Govt.

Opp. Br. at 18-28. Relying in part on the reasoning of

the court of appeals below, the Government contends

that “denying tax credits to individuals ... would throw

a debilitating wrench into the Act’s internal economic

machinery and obstruct the operation of the

interdependent reforms through which Congress

sought to address the previous failures of the

19

individual market for insurance.” Jd. at 25.°° The IRS

employed its “interpretive” powers to amend the Act in

an effort to right the ACA ship which was about to

sink in choppy waters created by the unanticipated

decisions of 37 States not to establish their own

Exchanges.

Pursuant to the IRS’s rulemaking powers, the

Government now asserts that “an Exchange

established by HHS in a State’s stead is, as a matter

of law, ‘an Exchange established by the State.” Govt.

Opp. Br. at 12. However, as Petitioners point out, this

claim “is pure ipse dixit; the Act says nothing of the

sort.” Pet. Br. at 13. While “Congress could have

deemed HHS Exchanges to be ‘established by the

State’ for subsidy purposes,” Petitioners observe, “it

never did.” Jd. And, while the Obama Administration

could have presented the issue to Congress, it never

did. Instead, the Government argues, “necessity

required prompt action ... that could not wait for the

legislature,”*' and out of such necessity the IRS by

bureaucratic fiat decided that the two kinds of

Exchanges were one. This is government by

“proclamation,” not by the bicameral and presentment

process dictated by Article I, Section 7, Clause 2. See

Hamburger’s Unlawful Law at 38-39. It smacks of the

® Although the Government concerns are opaquely stated (id. at

25), the Petitioners forthrightly aver that “the IRS Rule triggers

ACA mandates and penalties for millions of individuals and

thousands of employers in states served by HealthCare.Gov.” Pet.

Br. at 8-9.

* See Hamburger’s Unlawful Law at 41.

20

exercise of the “prerogative” powers of law-making and

unmaking, which was characteristic of the English

Star Chamber (an institution abolished in 1641 (id. at

41 and 57)), rather than the tripartite federal

government created by the United States Constitution

in 1789.

It is simply not for the IRS “to fill the gaps tn” in

ACA through interpretive law making. See

Hamburger’s Unlawful Law at 51. It is wholly

illegitimate tor the IRS to proclaim by “faux

interpretation” that, as a matter of law, an HHS-

established Exchange in a State is the equivalent of a

State-established Exchange in that State. By

presuming to do so, the IRS arrogated to itself

prerogative power characteristic of Roman law, not the

English common law. See id. at 52-53. Instead of

filling in a “gap” in the ACA, the IRS embarked on a

mission of its own, a mission comparable to the various

efforts chronicled in this brief to rescue the Obama

Administration from the increasingly unpopular ACA.

21

Il. JUDGED AGAINST ANY ACCEPTED

PRINCIPLE OF STATUTORY

CONSTRUCTION, THE GOVERNMENT'S

POSITION AND THE POSITIONS OF THE

JUDGES BELOW ARE UNSOUND AND

SHOULD BE REJECTED.

A. The Statute Clearly Limits Federal Tax

Credits to Those Purchasing from

Exchanges Created by the States.

Four central provisions of the ACA govern the

issue in this case. Each is short and easy to

understand:

1. “Each State shall, not later than

January 1, 2014, establish an American

Health Benefit Exchange ... for the state....”

ACA section 1311(b), Petitioner’s’ Brief

Addendum (“Pet. Br. Add.”) 2A (emphasis

added).

2. “If... a State is not an electing State ...

the Secretary shall ... establish and operate

such Exchange within the State.” ACA section

1321(c), Pet. Br. Add. 31A (emphasis added).

3. “The premium assistance amount

[applies to taxpayers who were] enrolled in

through an Exchange established by the

State under 1311.” ACA section 1401(a), Pet.

Br. Add. 35A (emphasis added).

22

4. The term “coverage month” applies to a

taxpayer “that was enrolled in through an

Exchange established by the State under

section 1311....” ACA section 1401(a), Pet. Br.

Add. 42A (emphasis added).

Because the statutory text is so clear, it took

considerable ingenuity for each of the judges of the

courts below to develop theories to uphold the IRS

regulation allowing premium assistance to taxpayers

not enrolled in an Exchange established by a State —

a result directly contrary to the unambiguous

statutory text. Upon careful examination, the reasons

offered by the courts below are revealed to be little

more than cover for dispensing with the statutory text.

B. The District Court Erroneously Elevated

Legislative History Over and Against the

Statutory Text.

Despite the fact that District Court Judge Spencer

acknowledged that “Plaintiffs’ plain meaning

interpretation ... has a certain common sense appeal”

he rejected that meaning solely because it “lack[ed]

any support in the legislative history.” Petition for

Certiorari Appendix (“Pet. App.”) at 7la (emphasis

added). Although Judge Spencer acknowledged that

“It}]he legislative history ... is long and complex,” he

nevertheless concluded “that Congress did not

expect the states to turn down federal funds [but

rather] assumed that tax credits would be available

nationwide because every state would set up its own

exchange.” Jd. at 70a (emphasis added).

23

Judge Spencer echoed the only identifiable reason

that the IRS presented for its regulation: “the relevant

legislative history does not demonstrate that

Congress intended to limit the premium tax credit to

State Exchanges.” Pet. App. at 9a (emphasis added).

Judge Spencer therefore ruled that “had Congress

intended to condition tax subsidies it would have

needed to provide clear notice.” Id. at 71a.

However, there is no rule which requires that the

“plain meaning” of a statute be supported by

legislative history in order to be given effect. It is

enough that the statutory language itself is clear, such

as itisin this case. See Pet. Br. at 18-20. It is through

the words of a statute alone that Congress exercises

the legislative function. Congress votes only on the

words of a statute. Only the words of the statute are

law. As Justice Oliver Wendell Holmes explained:

“We do not inquire what the legislature meant; we ask

only what the statute means.” Judge Spencer

inverted the Holmes rule and concluded, in essence,

that it does not matter what the statute says, if a

judge cannot independently validate what the

legislature may have meant based upon legislative

history, the executive is free to adopt any

interpretation it wishes.

Judge Spencer’s attempt to impose a new burden

on Congress — that it demonstrate in legislative

*® Oliver Wendell Holmes, “The Theory of Legal Interpretation”

in Collected Legal Papers 203, 207 (Dover Publications: 1920)

(cited in Oklahoma v. Burwell, 2014 U.S. Dist. LEXIS 139501 at

*15, n.16 (Sept. 30, 2014).)

24

history that it really meant each provision of every law

— constitutes an embarrassingly transparent effort to

avoid the “plain meaning” of the text. Harvard Law

Professor Laurence Tribe captured the absurdity of

elevating legislative history over the statutory text:

I never cease to be amazed by the arguments

of judges ... who proceed as though legal texts

were little more than interesting documentary

evidence of what some lawgiver had in mind....

[I}t is the text’s meaning, and not the content

of anyone’s expectations or intentions, that

binds us as law. [Laurence H. Tribe,

“Comment,” in Antonin Scalia, A Matter of

Interpretation: Federal Courts and the Law,

65-66 (Princeton U. Press, 1997).]

C. Section 36B Is Not Ambiguous.

Circuit Court Judges Gregory and Thacker agreed

with the district court that “plaintiffs offer[ed] no

compelling support in the legislative record for their

argument.” Pet. App. 24a. But they also recognized

that the defendants could not make a convincing case

either. Pet. App. 22a. Based on this dearth of

legislative history, they concluded “that the applicable

statutory language is ambiguous and subject to

multiple interpretations.” Thus, they upheld the IRS

regulation “as a permissible exercise of the agency’s

discretion.” Pet. App. 6a.

Yet, in viewing the actual text apart from the

ACA’s legislative history, the circuit court below

admitted that “there is a certain sense to the

25

plaintiffs’ position” as well as “common-sense appeal

of the plaintiffs’ argument; a literal reading of the

statute undoubtedly accords more closely with their

position.” Pet. App. 16a, 18a (emphasis added).

Further, the court acknowledged that “[i]f Congress

did in fact intend to make the tax credits available to

consumers on both state and federal] Exchanges, it

would have been easy to write in broader

language as it did in other places in the statute.” /d.

at 17a (emphasis added). Nevertheless, ignoring the

clear text, the court found “that Congress has not

‘directly spoken to the precise question at issue....” Jd.

at 26a (citations omitted.)

Unless one departs from the principle that the text

is paramount, no ambiguity can be found. See A.

Scalia & B. Garner, Read) w: The In retation

of Legal Texts (Thompson/West: 2012), p. 56.

Nevertheless, the circuit court adopted the

Government’s position that it should give preeminence

to the great and historic purposes of the ACA, the

signature law of the Obama Administration. The

panel stated that “we are primarily persuaded by

the IRS Rule’s advancement of the broad policy

goals of the Act.” Pet. App. 27a (emphasis added).

Likewise, in this Court, the Government again

focuses on the law’s broad purposes — that the ACA

was enacted to increase the number of Americans

covered by health insurance and to decrease the costs

of health care, and achieving this result required the

IRS to issue its regulation in question. Gov't. Br. Opp.,

p. 2.

26

Having found ambiguity in the statute, the courts

below deferred to the IRS rule, applying step two of

the test developed in Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984).

In doing so, the courts below allowed an

administrative agency the latitude to choose to expend

billions of dollars of federal money without express

Congressional authorization. As Petitioners have

argued, a court might “expect Congress to speak

clearly if it wishes to assign to an agency decisions of

vast ‘economic and political significance.” Util Air

Regulatory Grp. v. EPA, 134S.Ct. 2427, at 2444 (2014)

(quoting FDA v. Brown & Williamson Tobacco Corp..,

529 U.S. 120, 160 (2000). See Pet. Br., p. 52.

The courts below found an ambiguity only by

violating the rule of statutory construction which gives

supremacy to law’s text. As Justice Cardozo

explained, “we Lave not traveled, in our search for the

meaning of the lawmakers, beyond the borders of the

statute. In aid of the process of construction we are at

liberty, if the meaning be uncertain, to have recourse

to the legislative history of the measure....” United

States v. Great Northern Ry., 267 U.S. 144, 154 (1932).

Here, of course, there was no uncertain textual

meaning, only uncertain legislative history, and

therefore Judge Cardozo’s predicate for reliance upon

legislative history was not met.

Indeed, in order to ensure the “Supremacy-of-Text-

Principle,” there are four rules limiting a court’s

consideration of the purpose of a law, each of which is

designed to ensure judicial fidelity to, while

minimizing judicial creativity in, applying a legal

27

text.” The courts below shattered all of these

limitations. See Pet. Br. at 32-33.

First, the courts below failed to derive ACA’s

purpose from its text. Reading Law at 56. Instead

they relied on extrinsic sources, including ACA’s

sparse legislative history and the IRS self-serving

formula to paint a broad and sweeping statement of

universal health insurance coverage, while

disregarding the text’s emphasis upon the role that the

States were expected to play in governing their

respective insurance markets.

Second, the purpose must be defined “precisely,

and not in a manner that smuggles in the answer to

the question before the decision-maker.” /d. at 56.

Instead, the Government would have this Court be

satisfied with a general reference to the ACA

structure, history and purpose, without specifying

what that structure and history is, in relation to the

relevant text. Such imprecision opens the door “to

provide the judge’s answer rather than the text’s

answer as to the “purpose” of the distinction between

an Exchange established by the State as contrasted

with an Exchange established for a State that has

declined to establish one. 7d.

Third, the purpose must be defined “as concretely

as possible, not abstractly.” Jd. at 57. Yet the

Government describes the purpose to “increase” the

number of Americans covered by health insurance and

“ Reading Law at 56-58.

28

to “decrease” the costs of health care without

indicating the practical means prescribed by ACA to

accomplish those two goals. Stated so broadly, the

lack of concreteness in the stated purpose “effectively”

lets the judge decide what the statute should mean.

Finally, in the absence of “an obvious scrivener’s

error,” the courts below have allowed perceived

purpose to “contradict text” by “supplement[ing] it.”

Id. at 56-57. The courts below have disregarded the

truth that “the limitations of a text — what a text

chooses not to do [here, granting tax credits to those

who sign up with the HHS exchanges] — are as much

a part of its ‘purpose’ as its affirmative dispositions.

These ... limitations must be respected, and the only

way to accord them their due is to reject the

replacement or supplementation of text with purpose.”

Id. at 56-68. The courts below allowed what they

believed to be the grand purpose of the law, increasing

health insurance coverage, to override other possible

other Congressional purposes for section 36B,

including providing an incentive to states to establish

Exchanges — a requirement that Congress could not

constitutionally impose.”

D. The IRS Regulation Cannot Be Justified

on the Ground of Undesirable

Consequences.

The present case is only one of several challenges

which have been brought against these same IRS

“ See, e.g., Printz v. United States, 521 U.S. 898 (1997). See Pet.

Br. at 2.

29

regulations. In Halbig v. Burwell, 758 F.3d 290 (D.C.

Cir. 2014) (vacated by Order granting Rehearing en

banc, 2014 U.S. App. LEXIS 17099), Judges Griffith

and Randolph concluded that the IRS Rule is not

based on a permissible reading of ACA. They reached

this conclusion “with reluctance” due to the

“consequences both for the millions of individuals

receiving tax credits through federal Exchanges and

for health insurance markets more broadly.” Id. at

412. However, they understood:

the principle of legislative supremacy ... guides

us [and it is] our duty when interpreting a

statute is to ascertain the meaning of the

words of the statute.... This limited role serves

democratic interests by ensuring that policy is

made by elected, politically accountable

representatives, not by appointed, life-tenured

judges. [/d.]

Dissenting Circuit Judge Edwards viewed the case

not as a legitimate challenge to a set of regulations

based on variance with statute, but as a “not-so-veiled

attempt to gut” the ACA. To thwart that perceived

attempt, Judge Edwards realized that the text was not

his friend. But he also knew that “the more the

interpretive process strays outside a law’s text, the

greater the interpreter’s discretion.” Hence, Judge

Edwards insisted that the “words of a statute must be

read in their context” and interpreted as to uphold the

IRS Regulation, because otherwise “[i])mplausible

*® See Reading Law at xxii.

30

results would follow.” Halbig at 427. In focusing on

what he viewed to be the undesirable consequences of

following the statutory text, Judge Edwards dabbled in

the flawed interpretative approach of

“consequentialism,” urging that the ACA be

interpreted to achieve the results he believes to be

sensible and desirable. This is a dangerous judicial

technique, for:

it is precisely because people differ over what

is sensible and what is desirable that we elect

those who will write our laws — and expect

courts to observe what has been written.

There is an uncanny correspondence between

the consequentialist’s own policy views and his

judicial decisions. [Reading Law at 22.]

Indeed, both courts below focused on how the statute

should have been written rather than on how it was

written.

In upholding one of the other challenges to the IRS

regulation, District Judge Ronald A. White warned of

the impropriety of a court “helping’ one side or the

other” in litigation before it. Oklahoma v. Burwell,

2014 U.S. Dist. LEXIS 139501, *24 (Sept. 30, 2014).

“This is a case of statutory interpretation. “The text is

what it is, no matter which side benefits.” Jd. (citation

omitted). Moreover, referring to D.C. Circuit Judge

Edward's characterization of Petitioners’ motive in

Halbig, Judge White added:

[s]Juch a case ... does not “gut” or “destroy”

anything. On the contrary, the court is

31

upholding the Act as written. Congress is

free to amend the ACA to provide for tax

credits in both state and federal exchanges,

if that is the legislative will. [/d. at *24-25

(emphasis added).]

E. The Sea Change in Congress since

Passage of the ACA Must Not Drive this

Court’s Decision.

Judge White is right — Congress could amend the

ACA to legitimize the IRS regulation. However, left

unstated by Judge White is what could be viewed as

the elephant in the room — the political backdrop to

this litigation: that is, despite Congress’ awareness of

the textual issue raised in this litigation, it has not

acted to moot this litigation by conforming the

statutory text to the IRS regulation.” It is for this

political reason that the Government has resorted to a

regulatory fix, and now asks this Court to avert its

eyes to the Government’s textually unfettered reading

of the statute and the usurpation of legislative

authority inherent in the Government's approach.”’

% See, e.g.. M. Cannon and J. Adler, “The Dlegal IRS Rule to

Increase Taxes & Spending under ObamaCare,” Testimony before

Committee on Oversight and Reform, U.S. House of

ps ere ee —_ 2, 2012). hetp: Jiwww.cato. orgipublic potiana

*’ The reputation of the IRS as a nonpartisan entity has suffered

greatly from exposure of its targeting of certain categories of

applicants for tax-exempt status. See generally, Staff Report,

Committee on Oversight and Government Reform, U.S. House of

32

The stakes in this litigation are so high precisely

because the President and the Justice Department

recognize that Congress passed the 2010 law that the

President requested, but Congress now will not amend

the ACA as the President would want in 2015. ACA

passed the Senate by a strictly partisan vote of 60

Democrat Senators™ to 39 Republican Senators (with

one Republican not voting).*® ACA passed the House

of Representatives with only Democrat support by a

vote of 219 to 212 (the “no” vote consisting of 178

Republicans and 34 Democrats).“° Since then, three

federal elections have ensued, with the Democratic

Party losing control of both the Senate and House”:

Representatives, Lois Lerner’s Involvement in the IRS Targeting

of Tax Exempt Organizations (Mar. 11, 2014).

http://oversight. house.gov/wp-content/uploads/20 ‘ ner-R

eport 1.pdf.

“For purposes of this analysis, independent members of

Congress (Senator Bernard Sanders and Senator Angus King) are

counted with the Democrat party with which they caucus.

” ttp://www .povilegislativ call lists/roll call

vote cfm ?con = ion=1&vote= 6.

* http://clerk.house.gov/evs/2010/roll165.xml.

41

In each case, party composition at the beginning of each

Congress is used.

33

Party Composition of U.S. Congress

(111 - 114 Congress)

November

Election Congress Democrats Republicans

U.S. Senate

2008 FD ia 58” 41

2010 112" 53 47

2012 113" 55 45

2014 114" 46 54

U.S. House of Representatives

2008 423° 256 178

2010 112" 193 242

2012 us 200 233

2014 114" 188 247

As the American people have voted in federal

elections since ACA was enacted in March 2010, a

great many of the supporters of the ACA are no longer

serving in Congress. Moreover, the Republican Party,

which provided not one vote in either house to enact

the ACA, has achieved dominant positions in both

chambers.** The obvious political reality of this shift

in political winds is that the Obama Administration

*” Note: bolding indicates the party in control of each branch of

Congress.

*’ P. Klein, “Half of the Senators who voted for Obamacare won't

be part of new Senate,” Washington Examiner, (Dec. 6, 2014).

(Congressional passage of the ACA “triggerjed] a massive

backlash that propelled Republicans to control of the House the

following year. On the Senate side ... half of the Senators who

voted for Obamacare will not be part of the new Senate.”)

34

cannot rely on Congress to remedy the problem with

the ACA, and for this reason has attempted to use

regulation as a substitute for legislation.

However, the rules of statutory construction

cannot be adjusted to fix problems created by elections,

no matter how much one might otherwise want. For

example, in his concurrence in the Fourth Circuit

below, Judge Davis deferred to the Government’s

position asserting that “Congress has mandated ... tax

credits to all consumers” regardless of who established

the exchange. Pet. App. at 34a. Judge Davis stated

that the basis for his conclusion was “a simple reason:

‘(E]stablished by the State’ indeed means established

by the state — except when it does not....” Pet. App. at

36a.“ Indeed, in Oklahoma v. Burwell, District Judge

White analogized the Government’s creative argument

to Sundance Assocs., Inc. v. Reno, 139 F.3d 804, 807

(10" Cir. 1996), where the Tenth Circuit rejected a

Government assertion that an “evident exception in

[the Child Protection and Obscenity Enforcement Act

of 1988] statute was actually intended to broaden the

statute’s scope” as an exercise that “leads us down a

path toward Alice’s Wonderland, where up is down and

down is up and words mean anything.” lahoma v.

Burwell, at *16; Sundance Assocs. at 808.

“ Judge Davis’ “simple reason” brings to mind Justice

Rehnquist's critique that “[t]he reasoning which leads to this

conclusion would appeal only to a lawyer....” Francis v. Franklin,

471 U.S. 307, 338 (1985) (Rehnquist, J., dissenting).

35

The analogy to Alice’s world deserves

amplification, by reviewing Lewis Carroll’s telling of a

conversation between Humpty Dumpty and Alice:

“I don’t know what you mean by ‘glory,” Alice

said. Humpty Dumpty smiled

contemptuously. “Of course you don’t—till I

tell you. | meant ‘there’s a nice knock-down

argument for you!” “But ‘glory’ doesn’t mean ‘a

nice knock-down argument’,” Alice objected.

“When J use a word,” Humpty Dumpty said in

rather a scornful tone, “it means just what J

choose it to mean—neither more nor less.”

“The question is,” said Alice, “whether you

CAN make words mean so many different

things.” “The question is,” said Humpty

Dumpty, “which is to be master—that’s all.”*°

Faced with an unambiguous statute, the Government

urges this Court to become the master of words by

investing a statutory text with a meaning completely

contrary to its plain meaning. This exercise is being

pursued not based on established rules of statutory

construction, but for an extra-legal reason best

understood as Realpolitik. That, this Court cannot

countenance.

NCLUSION

For the foregoing reasons, the decision of the court

of appeals should be reversed.

* Lewis Carroll, Through the Looking Glass (1871).

36

Respectfully submitted,

MICHAEL CONNELLY HERBERT W. TITUS*

U.S. JUSTICE WILLIAM J. OLSON

FOUNDATION JOHN S. MILES

932 D Street, Ste. 2 JEREMIAH L. MORGAN

Ramona, CA 92065 ROBERT J. OLSON

(760) 788-6624 WILLIAM J. OLSON, P.C.

Attorney for Amicus 370 Maple Avenue West

Curiae U.S. Justice Suite 4

Foundation Vienna, VA 22180-5615

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

*Counsel of Record

December 29, 2014