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

No. 14-114

IN THE

Supreme Court of the United States

DAVID KING, et al.,

Petitioners,

v.

SYLVIA MATTHEWS BURWELL, et al.,

Respondents.

On Wait or CERTIORARI TO THE UNITED StTaTES

Court or APPEALS FOR THE Fourtu Circuit

——-—

BRIEF OF PACIFIC RESEARCH INSTITUTE,

INDIVIDUAL RIGHTS FOUNDATION, AND

REASON FOUNDATION AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

C. Dean McGratu, Jr. Bert W. REIN

McGratu & AssociaTEes Counsel of Record

1025 Thomas Jefferson Wizey Rein LLP

Street, NW, Suite 110G 1776 K Street, NW

Washington, DC 20007 Washington, DC 20006

(202) 719-7000

brein@wileyrein.com

WiLuiaM S. Consovoy

Tuomas R. McCartuy

J. MICHAEL CONNOLLY

Consovoy McCartuy PLLC

3033 Wilson Boulevard, Suite 700

Arlington, Virginia 22201

Counsel for Amici Curiae

December 29, 2014

257341 Library of Cong>0ss

t

TABLE OF CONTENTS

Page

ee CEG ocaceds ke wené cee cus i

TABLE OF CITED AUTHORITIES .............. ii

INTEREST OF AMICI CURIAE .................. l

SUMMARY OF THE ARGUMENT................ 2

kg SRNR IRE one Pear G earl tty, Rapin oy ot faeg at 6

I. The Fourth Circuit Failed To Fulfill Its

Article II] Responsibility To Enforce The

Text Of The Affordable Care Act As

Cd dasVanduuwe awe buau siewecocke see. 6

Il. Neither The IRS Nor The Courts Have The

Authority To Usurp Congress's Lawmaking

Power By Making Tax Credits Available To

Purchasers On Federal Exchanges........... 13

IiL Fundamental Separation Of Powers

Principles Require The Court To Return

The Issue Of Tax Credit Availability

On Federal Exchanges To The Political

ages Pa Fame Rene Re g* Anh beretaera est: ars 804 19

]

TABLE OF CITED AUTHORITIES

CASES

14 Penn Plaza LLC v. Pyett,

eT EI se eiascaeéieescsscccues

Air Power, Inc. v. United States,

741 F.2d 53 (4th Cir. 1984)..................

Aldridge v. Williams,

I noc e'suw ends teen ed cues erie

Ali v. Fed. Bureau of Prisons,

ee cn da ces cis vadaseuebccats

Anderson v. Mt. Clemens Pottery Co.,

Pe exe ucevee ec T cur ein

Bank One Chicago, N.A. v.

Midwest Bank & Trust Co.,

ee Is vind Since era ened

Barnhart v. Sigmon Coal Co.,

ee Se EE cb Sa rdw en bcny veer cu dhun

Bate Refrigerating Co. v. Sulzberger,

Pee ee Ss sac evan des vadeenesactees

BedRocs Ltd., LLC v. United States,

ae es IEE 3's 0d Uns oo cede sceaeees

Page

mE

200

Cited Authorities

Page

Burrage v. United States,

Be i ks ee I oa 88 ooo sk ee ee 22

Chevron U.S.A. Inc. v. NRDC., Inc.

ee a eS oie cece eto us eee. passim

City of Joliet, Ill. v. New West, L.P.,

562 F.3d 830 (7th Cir. 2009) ................... 8-9

Clinton v. City of New York,

See a IS So co eicas ava ce eeae we 14, 21, 25

Connecticut Nat'l Bank v. Germain,

ee A I, Sia es oe a rath eke 7

Exxon Mobil Corp. & Affiliated Cos. v. C.I.R.,

Ee EA ATE A OE oc bee hk ee ee hc tokes wae 24

FDA v. Brown & Williamson Tobacco Corp.,

aa) I os Oc nee cee are 13, 18, 19

Ford Motor Credit Co. v. Milhollin,

Aes NE es own eo ee ace 13

Gordon. Holder,

an Pe Gee CC, Cir. BOER). 2... cc ccc ccc cccen 15

Griffin v. Oceanic Contractors, Inc.,

eee sie a ean 10

wv

Cited Authorities

Page

Halbig v. Burwell,

758 F.3d 390 (D.C. Cir. 2014)................ 6-7, 22

Hamdan v. Rumsfeld,

eR I 3 Go eee ae Kd sb ebue see puasyen 25

In re Aitken Cnty,

poe ee | re reer reer 14

Lamie v. U.S. Trustee,

PP PIG Ws iccsinskdennbep bees 7, 15, 23

Ledbetter v. Goodyear Tire & Rubber Co.,

RRM IL oS.eb 55 ve bd cbeeuntecteas 23-24

Lewis v. City of Chicago, /Il.,

IIIS bo gcc bes tsbuhcecevesctenseed &

License Tax Cases,

eR oa vs bkoaeccnnawskbessssusuere 8

Loving v. United States,

as SE ce dkvoaCkcicnaacccesnees 20, 21

M’Culloch v. Maryland,

ST EE vcncécceswseecessrsisewees 15-16

Mayo Foundation v. United States,

EG Ficus chred cease cedecaraves 17

7]

Cited Authorities

Mistretta v. United States,

ee Pr PererereereT eee

New York v. United States,

SP EA) SO UNE 6b 60s seb cdeverseecens

NFIB v. Sebelius,

Pe Re

Oklahoma ez rel. Pruitt v. Burwell,

---F, Supp. 2d ---, 2014 WL 4854543

(E.D. Okla. Sept. 30,2014) ...............

Oncale v. Sundowner Offshore Servs., Inc.,

SEA PPEMEED Sc evkcenecesevereecance

Paddock v. United States,

280 F.2d 563 (2d Cir. 1960)...............

Pension Benefit Guar. Corp. v. LTV Corp.,

A OES 6 Sic reat iniecesesess

Plaut v. Spendthrift Farm, Inc.,

Ss gs | Pree rr rererT Tiere

Pub. Citizen v. NRC,

901 F.20 147 (D.C. Cir. 1990). .............

Ratzlaf v. United States,

PGR REED bc eas osc evectesewene

vi

Cited Authorities

Robbins v. Chronister,

435 F.3d 1238 (10th Cir. 2006) ..........

Rodriguez v. United States,

ge ee

Ry. Emp. Dep't v. Hanson,

ee

Sandifer v. U.S. Steel Corp.,

BBG S. CR, GRO GIIRD). ooo cccvvcvescasves

Shami v. C.LR.,

741 F.3d 560 (5th Cir. 2014).............

Skinner v. Mid-Am. Pipeline Co.,

BO UE. BEB CGD: 6 6 scaccvusvsscadete

Sorrells v. United States,

SOT UB. G00 ss voc ccvnsscnécosweys

Tenn. Valley Auth. v. Hill,

ABT UB. TRB GRGED oo on ccccnveneccesens

Terrell v. United States,

564 F.3d 442 (6th Cir. 2009) ............

Union Pac. R.R. Co. v. United States,

99 U.5. TOO CBT «oc vevevcccsscscssses

aes ..16

vit

Cited Authorities

Page

United States v. McFerrin,

570 F.3d 672 (Sth Cir. 2009). .... 22... ccc cece wees 16

United States v. Wells Fargo Bank,

tens iene sek awa scsaxs ange 16

Util. Air Regulatory Group v. EPA,

TT ei ccc ecase ss eabanecuecces 18

W. Va. Univ. Hosps., Inc. v. Casey,

rs oe ener ae weak ss sie anes << 7

Yazoo & Miss. Valley R.R. Co. v Thomas,

recs gnaeetate rset cetaae vas 16

STATUTES AND OTHER AUTHORITIES

re ee te vad cw: esclnwceeane 16

cn cane cu vedwetiwstdviase 20

EE MEE cca ccanccessctccchsced ‘swe 17

nla nesses cckkdeneeancea:'s 23

ee ee es cata pass kb wes 19

H.R. Res. 1225, 111th Cong. (Mar. 25, 2010) ......... 12

Pub. L. No. 111-2, § 2, 123 Stat. 5 (2009) ............ 24

Viti

Cited Authorities

Page

Tax Technical Corrections Act of 1998, Pub. L.

No. 105-206, 112 Stat. 790 (1998) ................ 24

Tax Technical Corrections Act of 2005, Pub. L.

No. 109-135, 119 Stat. 2610 (2005) ............... 24

Tax Technical Corrections Act of 2007, Pub. L.

No. 110-172, 121 Stat. 2473 (2007) ............... 24

Technical and Miscellaneous Revenue Act of 1988,

Pub. L. No. 100-647, 102 Stat. 3342 (1988) ........ 24

Technical Corrections Act of 1982, Pub.

L. No. 97-448, 96 Stat. 2365 (1983) .............. 24

1 Annals of Cong. 65 (1789) (Joseph Gales ed., 1834) . .16

David Nather, Will Jonathan Gruber Topple

Obamacare?, Politico Magazine, Dec. 7, 2014...... 11

Frank H. Easterbrook, foreword to Reading Law:

The Interpretation of Legal Texts, by Antonin

Scalia & Bryan A. Garner (Ist ed. 2012)........ 9, 25

John C. Nagle, Corrections Day, 43 UCLA L.

BE, BT EE c vcecshesvccntncusdaranckevuns 24

John Cannan, A Legislative History of the

Affordable Care Act: How Legislative

Procedure Shapes Legislative History,

105 Law Libr. J. 181 (ONS)... ... 2.22 eee 11, 12

ix

Cited Authorities

John F. Manning, The Absurdity Doctrine, 116

ee Bas De ee ED kins boc hedoeuccens

Richard J. Pierce, Jr., Reconciling Chevron and

Stare Decisis, 85 Geo. L.J. 2225 (1997) .......

Samuel A. Donaldson, The Easy Case Against Tax

Simplification, 22 Va. Tax Rev. 645 (2003)... ..

Sir William Blackstone, 1 Commentaries on the

EN GE CN Es oh ons Wiccceecsccees

The Constitution of the United States of America:

Analysis and Interpretation, Congressional

Research Service, Sen. No. 112-9 (2013).......

The Declaration of Independence para. 15 (1776) . .

The Federalist No. 47 (J. Madison) (Jacob E.

ls a a ae

The Federalist 66 (A. Hamilton)................

Thomas W. Merrill, Justice Stevens and the

Chevron Puzzle, 106 Nw. U. L. Rev. 551

GED sock dkicnsctedan ane weaveavetarencess

Vincent L. Frakes, Partisanship and

(Un)Compromise: A Study of the Patient

Protection and Affordable Care Act,

49 Harv. J. on Legis. 135 (2012)..............

l

INTEREST OF AMICI CURIAE'

Amici curiae share a strong interest in this case given

its significant implications for each organization’s mission.

The Pacific Research Institute (“PRI”) is a non-

profit non-partisan 501(c)(3) organization that champions

freedom, opportunity, and personal responsibility by

advancing free-market policy solutions to the issues that

impact the daily lives of Americans. PRI demonstrates

how free interaction among consumers, businesses, and

voluntary associations is more effective than government

action in providing the important results we all seek—

good schools, quality health care, a clean environment,

and economic growth. Founded in 1979 and based in San

Francisco, PRI is supported by private contributions.

Its activities include publications, public events media

commentary, invited legislative testimony, filing amicus

briefs with courts, and community outreach.

The Individual Rights Foundation (IRF) was founded

in 1993 and is the legal arm of the David Horowitz Freedom

Center. The IRF is dedicated to supporting free speech,

associational rights, and other constitutional protections.

To further these goals, IRF attorneys participate in

litigation and file amicus curiae briefs in cases involving

fundamental constitutional issues. The IRF opposes

attempts to undermine freedom of speech and equality of

1. No counsel for a party authored this brief in whole or in part,

and no such counsel or party made a monetary contribution intended

to fund the preparation or submission of this brief. No person

other than the amici curiae, or their counsel, made a monetary

contribution to its preparation or submission. The parties have

consented to the filing of this brief.

2

rights, and it combats overreaching governmental activity

that impairs individual rights.

Reason Foundation is a national, nonpartisan, and

nonprofit public policy think tank, founded in 1978.

Reason’s mission is to advance a free society by developing,

applying, and promoting libertarian principles and

policies—including free markets, individual liberty, and

the rule of law. Reason supports dynamic market-based

public policies that allow and encourage individuals

and voluntary institutions to flourish. Reason advances

its mission by publishing Reason magazine, as well as

commentary on its websites, www.reason.com and www.

reason.tv, and by issuing policy research reports. To

further Reason’s commitment to “Free Minds and Free

Markets,” Reason selectively participates as amicus

curiae in cases raising significant constitutional issues.

SUMMARY OF THE ARGUMENT

Despite the political prominence of this litigation,

it is a simple case that should turn on a fundamenta!

constitutional principle: neither a federal court nor an

executive agency can ignore or override a law’s plain

meaning—period. There can be no meaningful dispute

that the text of the Affordable Care Act (“ACA”) makes

tax credits available only to those purchasing insurance

on state Exchanges. Brief for Petitioners (“Pet. Br.”) 18-

30. Yet by relying on legislative purpose and invoking

Chevron deference, the Fourth Circuit upheld an Internal

Revenue Service (“IRS”) regulation deeming federal

Exchanges to be state Exchanges and thus making

premium tax credits available to purchasers on federal

Exchanges. Petition Appendix (“Pet. App.”) la-4la. By

3

upholding the IRS Rule, the Fourth Circuit failed to fulfill

its responsibility under Article III.

The Fourth Circuit should have rejected the IRS’s

appeal to broad congressional purposes. By elevating its

own perception of Congress’s broad vision over the law’s

text, the Fourth Circuit ignored the cardinal principle

that legislative purpose must be effected by the words

Congress uses, not the words a court believes Congress

might have or should have used. Article III does not

empower courts to divine Congress’s overarching

objective and then reverse-engineer a version of the law

that best achieves it. Quite the opposite, the judicial task

is to discern the ordinary meaning of the words Congress

uses and enforce them. Thus, even accepting as correct the

Fourth Circuit’s questionable assessment that Congress

wanted to extend tax subsidies to those purchasing

insurance through federal Exchanges, there is no basis

for deviating from Congress’s expressed will. Unenacted

legislative intentions are not the supreme law of the land

under Article IV of the Constitution.

Moreover, a unified legislative purpose is almost

always a myth. Legislation is the product of negotiation

and compromise in which lawmakers may sacrifice one

interest to achieve another. In the main, a bill successfully

runs the legislative gauntlet not because Congress has a

unity of purpose—but because it reconciles a multiplicity

of purposes, some of which may be incompatible. The

notion that every Representative and every Senator voting

in favor of a bill did so for the same reason paints an

unrealistic picture of the legislative process. The process

leading to the ACA’s passage illustrates the point. This

behemoth of a law—over 2,400 pages in all—resulted from

4

ad hoe procedures, convenient alliances, special deals to

secure holdout votes, admissions by key legislators that

they never read it, and a chaotic race to the finish line

prompted by the surprising outcome of a special election

in Massachusetts. If there were ever a case in which a

court should refrain from divining a unified congressional

purpose, this is it.

Attempting to uncover a single legislative purpose in

derogation of the law’s plain meaning is not only beyond

judicial competence, it invades Congress’s constitutional

province. If the ACA needs to be amended or rewritten

to achieve the legislature’s intention in passing it in the

first place, that is Congress’s job. That would be true even

if the ACA’s limitation on subsidies were nothing more

than a drafting error. If the statutory provision at issue

was the product of inadvertence or oversight, Congress

must—and indeed can—fix the problem itself. Corrective

technical legislation, particularly in the complex field

of the Interna] Revenue Code, is routinely enacted to

resolve problems of correlating legislative intent and

statutory language. Pursuit of a technical correction,

rather than rewriting the statute to suit the Executive’s

policy preference, was the proper action for the IRS to

take to broaden subsidy entitlement. Courts are required

by Article III to ensure that federal agencies do not end-

run the legislative process.

The Fourth Circuit’s reliance on Chevron deference is

equally misplaced. Chevron does not permit an executive

agency to rewrite statutory law to advance what it

perceives, rightly or wrongly, to be the broad purpose of

legislation. When the statute’s text is unambiguous, as it

is here, there is no place for agency deference. Judicial

4)

acquiescence to an agency regulation rewriting federal

law is not Chevron deference.

But even if the IRS were able to claim tenuous

ambiguity by cobbling together a miscellany of legislative

provisions, as the Fourth Circuit did, substituting

deference for the better textual construction is appropriate

only if Congress intended for the agency to fill statutory

gaps. There is no indication in the ACA that Congress

delegated to the IRS the power to determine whether

billions of federal subsidy dollars annually should be

dispersed to those purchasing health coverage on federa!

Exchanges. The IRS cannot use an ambiguous statute to

impose a tax or create a tax credit that Congress did not

specifically authorize.

At base, the Constitution separates the branches of

government in anticipation of situations like this one. It

is perhaps understandable that the IRS and the Fourth

Circuit surrendered to temptation and rewrote the ACA in

order to aid those taxpayers whose ability to afford health

coverage might be compromised by the unavailability of

credits on federal Exchanges and the failure of states

to establish their own Exchanges. But the Framers

understood that such concerns must be redressed through

democratic means, however imperfect and inefficient

they sometimes may be. The Fourth Circuit ignorea the

fundamental principle that expediency cannot trump

first principles. This Court should not do the same. It

should remain true to this fundamental bulwark of our

constitutional system and return the ACA subsidy issue

to the political system where it belongs.

6

ARGUMENT

I. The Fourth Circuit Failed To Fulfill Its Article

Ill Responsibility To Enforce The Text Of The

Affordable Care Act As Written.

There can be no legitimate dispute that the text of the

ACA forecloses purchasers on federal Exchanges from

obtaining premium tax credits. This is not a close question.

See Pet. Br. 18-30. The Fourth Circuit, nevertheless,

upheld the IRS Rule in contravention of Section 36B’s plain

meaning. The court’s purported rationale was a perceived

variance between the ACA’s text and Congress’s overall

purpose in passing the statute. To the court, then, the key

issue was not the statute’s text, but rather what “Congress

intended” in passing the ACA. Pet. App. 63a. That mode

of analysis is seriously flawed for several reasons.

As an initial matter, the assertion that the ACA’s

only goal was to expand health coverage at all costs is

overly simplistic and wrong. There is ample evidence that

Congress also was concerned with creating incentives for

states to establish Exchanges and making states politically

accountable. See Pet. Br. 1-5, 32-43. For example, the

ACA’s own Medicaid expansion provisions expressly rely

on financial incentives to induce states to expand their

participation in that program on pain of having their

disadvantaged citizens bear the consequences if they

refuse to do so. The assertion that the singular purpose of

the federal Exchanges is to provide health care coverage

to those individuals eligible for tax subsidies is similarly

mistaken. “Federal Exchanges might not have qualified

individuals, but they would still have customers—namely,

individuals who are not ‘qualified individuals.” Halbig v.

7

Burwell, 758 F.3d 390, 405 398 (D.C. Cir. 2014), reh’g en

banc granted, judgment vacated, No. 14-5018, 2014 WL

4627181 (D.C. Cir. 2014). They would secure the savings

that the ACA envisions as resulting from increased

competition at centralized, transparent shopping venues.

Even assuming arguendo that the Fourth Circuit

correctly identified Congress’s primary purpose in passing

the ACA, no interpretative canon allows a court to elevate

legislative purpose over plain meaning. Specifically, the

“preeminent canon of statutory interpretation requires us

to presume that [the] legislature says in a statute what it

means and means in a statute what it says there.” BedRocs

Ltd., LLC v. United States, 541 U.S. 176, 183 (2004); see

also Connecticut Nat'l Bank v. Germain, 503 U.S. 249,

253 (1992). Courts “do not resort to legislative history

to cloud a statutory text that is clear.” Ratzlaf v. United

States, 510 U.S. 135, 147-48 (1994). Even if the ACA’s text

conflicts with Congress’s goal of universal coverage, it is

irrelevant. “In such a contest, the text must prevail.” 14

Penn Plaza LLC v. Pyett, 556 U.S. 247, 259 n.6 (2009).

Even if the statutory text were a pure drafting

error—producing a law precisely the opposite of what

Congress intended—the Court still must enforce the

law as written. This Court cannot “soften the import of

Congress’s chosen words even if [it] believe[s] the words

lead to a harsh outcome.” Lamie v. U.S. Trustee, 540 U.S.

526, 538 (2004). “It is beyond [this Court’s] province to

rescue Congress from its drafting errors, and to provide

for what [it] might think is the preferred result.” Jd. at

542; see W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S.

83, 101 (1991) (“The facile attribution of congressional

‘forgetfulness’ cannot justify [judicial] usurpation.”).

8

If it was an error in the ACA’s drafting that excluded

individuals purchasing insurance through federal]

Exchanges from eligibility for tax credits and, “that effect

was unintended, it is a problem for Congress, not one that

federal courts can fix.” Lewis v. City of Chicago, Ill., 560

U.S. 205, 217 (2010). “Judicial nullification of statutes ...

has, happily, no place in our system. The Congress by

legislation can always, if it desires, alter the effect of

judicial construction of statutes.” Sorrells v. United

States, 287 U.S. 435, 450 (1932).

Favoring the ACA’s text over an allegedly conflicting

legislative purpose is not an arbitrary judicial policy—it

follows directly from the judiciary’s “limited role in [the]

tripartite government.” Robbins v. Chronister, 435 F.3d

1238, 1243 (10th Cir. 2006). “While ‘{i]t is emphatically the

province and duty of the judicial department to say what

the law is,’ it is equally—and emphatically—the exclusive

province of the Congress not only to formulate legislative

policies and mandate programs and projects, but also to

establish their relative priority for the Nation.” Tenn.

Valley Auth. v. Hill, 437 U.S. 153, 194 (1978). Federal

courts “cannot amend or modify any legislative acts” or

judge “questions as expedient or inexpedient, as politic

or impolitic.” License Tax Cases, 72 U.S. 462, 469 (1866).

Rather, the judiciary must respect the compromises

wrought during the legislative process, and it must

resist the urge to rewrite “a more coherent, more

rational statute.” zobbins, 435 F.3d at 1243. When courts

rewrite statutes to better effectuate Congress’s overall

purpose, they “become effective lawmakers, bypassing

the give-and-take of the legislative process.” City of

Joliet, Ill. v. New West, L.P., 562 F.3d 830, 837 (7th Cir.

9

2009). By glossing over hidden legislative compromises,

judicial adjustments invade Congress’s domain. Bate

Refrigerating Co. v. Sulzberger, 157 U.S. 1, 43 (1895).

Courts apply laws as written—not legislative

intentions—because laws are what command legitimacy.

“The law as it passed is the will of the majority of both

houses, and the only mode in which that will is spoken is in

the act itself.” Aldridge v. Williams, 44 U.S. 9, 24 (1845).

In other words, “the law is what the law says.” Bank One

Chicago, N.A. v. Midwest Bank & Trust Co., 516 U.S.

264, 279 (1996) (Scalia, J., concurring). Therefore, even

if the ACA’s singular purpose were discernible through

the foggy lens of legislative history, courts do not sit to

vindicate purpose in derogation of the words chosen by

Congress. “[I}t is ultimately the provisions of our laws

rather than the principal concerns of our legislators by

which we are governed.” Oncale v. Sundowner Offshore

Servs., Inc., 523 U.S. 75, 79-80 (1998).

The reality, of course, is that a court’s search for

a unitary legislative intent will almost always end in

disappointment. “Every legislator has an intent, which

usually cannot be discovered, since most say nothing

before voting on most bills; and the legislature is a

collective body that does not have a mind; it ‘intends’

only that the text be adopted, and statutory texts usually

are compromises that match no one’s first preference.”

Frank H. Easterbrook, foreword to Reading Law: The

Interpretation of Legal Texts, by Antonin Scalia & Bryan

A. Garner (1st ed. 2012) (emphasis in original). Individual

legislators often have sharply different views on the goals

and scope of their enactments, so “the words by which the

legislature undertook to give expression to its wishes”

10

offer the most “persuasive evidence” of a law’s purpose.

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571

(1982).

It should come as no surprise that the final product

may lack an internally consistent purpose as legislation

often passes through compromise and negotiation among

competing interests. “{Llegislative preferences do not

pass unfiltered into legislation; they are distilled through

a carefully designed process that requires legislation to

clear several distinct institutions, numerous veto gates,

the threat of a Senate filibuster, and countless other

procedural davices.” Johu F. Manning, The Absurdity

Doctrine, 116 Harv. L. Rev. 2387, 2390 (2003). Results

that might seem ill-fitting as an abstract matter “may be

perfectly rational from a legislative process perspective.”

Id. at 2431. “Deciding what competing values will or

will not be sacrificed to the achievement of a particular

objective is the very essence of legislative choice.” Pension

Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 646-47

(1990).

Attempting to divine a singular legislative purpose

from the legislative process is thus hazardous even as

a last resort. Rodriguez v. United States, 480 U.S. 522,

525-26 (1987) (“[N]o legislation pursues its purposes at

all costs. Deciding what competing values will or will not

be sacrificed to the achievement of a particular objective

is the very essence of legislative choice—and it frustrates

rather than effectuates legislative intent simplistically

to assume that whatever furthers the statute’s primary

objective must be the law.”). But to use the results of this

kind of vague judicial inquiry into legislative motive as the

interpretative touchstone when the text of the statute is

11

unambiguous, as is the situation here, is constitutionally

impermissible.

The ACA’s legislative history is a case study in why

the search for a unified legislative purpose is treacherous.

To state the obvious, the ACA was hardly the result of

a deliberative, harmonious process in which Congress

acted with clarity of purpose. Indeed, it appears that

the process was orchestrated in order to hide the ACA’s

true aims from Members of Congress and the public. See

David Nather, Will Jonathan Gruber Topple Obamacare?,

Politico Magazine, Dec. 7, 2014 (quoting Jonathan Gruber,

one of the architects of the legislation, as stating that

“It}his bill was written in a tortured way to make sure

CBO did not score the mandate as taxes. If CBO scored

the mandate as taxes, the bill dies.... Lack of transparency

is a huge political advantage.... Call it the stupidity of the

American voter or whatever, but basically that was really,

really critical to getting the thing to pass.”).

Further, “debate over health care was contentious

from the legislation’s inception, and enacting it required a

variety of ad hoc procedures.” John Cannan, A Legislative

History of the Affordable Care Act: How Legislative

Procedure Shapes Legislative History, 105 Law Libr. J.

131, 133 (2013). “{F Jragile truce[s]” and “delaying tactic[s]”

plagued the process as the ACA’s proponents scrambled

to insulate themselves from filibuster. Jd. at 156. One

key Senator’s vote was secured by adding an amendment

to boost his state’s Medicaid reimbursement rates, and

another’s was reportedly obtained in exchange for similar

inducements. See Vincent L. Frakes, Partisanship and

(Un)Compromise: A Study of the Patient Protection and

Affordable Care Act, 49 Harv. J. on Legis. 135, 138-39

(2012).

12

Amendments reflected more unusual bargains as well.

“Opposition to funding the proposal through taxes on

elective cosmetic surgery,” for instance, “led to a change

that taxed ‘indoor tanning services’ instead.” Cannan,

supra, at 156-57. And after Scott Brown won a special

election to fill Senator Ted Kennedy’s seat, the bill stood

on a knife’s edge, as the filibuster-proof majority in the

Senate unexpectedly collapsed. The bill survived only

because a slim House majority passed it in toto—and

separately pushed through amendments by way of a

short-fuse “reconciliation” bill that was immune from

filibuster. H.R. Res. 1225, 111th Cong. (Mar. 25, 2010).

More than any other law in recent memory, “[a] change in

any individual provision [in the ACA] could have unraveled

the whole.” Barnhart v. Sigmon Coal Co., £24 U.S. 438,

461 (2002). The resulting 2,400-plus-page reformation of

the American health care system was ther! re a mass

of compromises.

Given this “rough and tumble of the legislative

process,” Robbins, 435 F.3d at 1243, it would be folly to

rely on unified congressional purpose as an interpretative

foundation, Barnhart, 534 U.S. at 461 (refusing to “judge

or second-guess” the legislative process). Legislative

intent is, on its best day, a secondary interpretative

tool courts will sometimes employ when the primary

interpretative means fail to yield a clear answer. But that

is not the case here. The ACA’s text is clear. It just does

not embody the Fourth Circuit’s and the IRS’s perception

of the singular purpose of what Congress was trying to

achieve in this legislation. That kind of reverse-engineered

interpretative process is inappropriate, especially given

the ACA’s chaotic path to law. In a case like this, the

statute’s text is the only sure footing. It must be enforced

as written.

13

Il. Neither The IRS Nor The Courts Have The

Authority To Usurp Congress’s Lawmaking Power

By Making Tax Credits Available To Purchasers

On Federal Exchanges.

The constitutional duty of the Executive Branch

and the courts to faithfully interpret federal law is not

diminished because this case involves an administrative

regulation. See Chevron U.S.A. Inc. v. NRDC., Inc. 467

U.S. 837, 842-43 (1984) (“[T Jhe court, as well as the agency,

must give effect to the unambiguously expressed intent

of Congress.”). Under Chevron, then, if “Congress has

directly spoken to the precise question at issue ... the

inquiry is at an end.... But if Congress has not specifically

addressed the question, a reviewing court must respect

the agency’s construction of the statute so long as it is

permissible.” FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 132 (2000) (internal citations and quotations

omitted).

As the Court has explained many times, “deference

under Chevron to an agency’s construction of a statute

that it administers is premised on the theory that a

statute’s ambiguity constitutes an implicit delegation from

Congress to the agency to fill in the statutory gaps.” Jd.

at 159. An agency’s reasonable construction is entitled to

judicial respect when, by leaving a statutory gap, Congress

has implicitly chosen to delegate its “lawmaking power” to

the federal agency. Ford Motor Credit Co. v. Milhollin, 444

U.S. 555, 566 (1980). Respect for the agency’s regulatory

choice honors Congress’s delegation. By the same token,

however, “[w]hen the statute is unambiguous, there has

been no delegation to the agency to interpret the statute

and therefore the agency’s interpretation deserves no

14

consideration at all, much less deference.” Terrell v. United

States, 564 F.3d 442, 450 (6th Cir. 2009). Unlike when

Congress leaves a gap in the law, upholding a regulation

that varies from the statute’s unambiguous terms usurps

Congress’s choice not to delegate its lawmaking power to

the agency.

Because Section 36B is not ambiguous, allowing the

IRS to ignore the ACA’s plain meaning would deal a double

blow to our tripartite system. First, it would allow the

Executive to ignore the will of Congress—expressed in

the text—and substitute its preferred outcome for the one

provided for by law. The Constitution does not give the

executive branch “the unilateral power to change the text

of duly enacted statutes.” Clinton v. City of New York, 524

U.S. 417, 447 (1998). “[T]Jhe President and federal agencies

may not ignore statutory mandates or prohibitions merely

because of policy disagreement with Congress.” In re

Aiken Cnty, 725 F.3d 255, 260 (D.C. Cir. 2013). The IRS

may disagree with Congress’s choice not to afford tax

subsidies to those purchasing insurance through federal

Exchanges, but it was Congress’s choice to make. “When

Congress gives an agency its marching orders, the agency

must obey all of them, not merely some.” Pub. Citizen v.

NRC, 901 F.2d 147, 156 (D.C. Cir. 1990).

Second, the improper invocation of administrative

deference would allow the judiciary to use it as an excuse

to impose its own sense of what is best and thus arrogate

to the court legislative power the Constitution assigned to

Congress. That is the very problem Chevron was designed

to solve. “Before Chevron, each of hundreds of federal

judges had substantial policymaking power.” Richard

J. Pierce, Jr., Reconciling Chevron and Stare Decisis,

85 Geo. L.J. 2225, 2233 (1997). Chevron ensures that

15

policymaking resides in the.political branches and that

the power either to make the legislative choice itself or

delegate that responsibility to an agency remains “under

the contro! of Congress.” Thomas W. Merrill, Justice

Stevens and the Chevron Puzzle, 106 Nw. U. L. Rev. 551,

555-56 (2012). When there has been a delegation, Chevron

thus keeps judges “from substituting their own interstitial

lawmaking for that of an agency.” City of Arlington,

Tex., 133 S. Ct. at 1873. And when there has not been a

delegation from Congress, as is the case here, the court’s

“sole function ... is to enforce [the statute] according to

its terms.” Lamie, 540 U.S. at 534. The Chevron question

is resolvable on this ground alone.

But even if the statute were ambiguous, recognizing

an implicit delegation is especially inappropriate here

given that the IRS Rule involves Congress's taxing power.

Close examination of the power of taxation reveals there

is no basis for concluding that the IRS has the authority to

impose taxes or grant tax credits based on an ambiguous

statute. The taxing power has a unique place in our

history. King George’s unjust imposition of taxes on the

Colonies was one of the chief charges against him: “He has

combined with others to subject us to a Jurisdiction foreign

to our Constitution, and unacknowledged by our Laws;

giving his Assent to their Acts of pretended Legislation

.... For imposing taxes on us without our Consent.” The

Declaration of Independence para. 15 (1776); Gordon v.

Holder, 721 F.3d 638, 649 (D.C. Cir. 2013) (“The demand

that taxation regimes possess democratic legitimacy finds

deep roots in the founding of our republic.”).

The Framers knew all too well that “the power to tax

involves the power to destroy.” M’Culloch v. Maryland,

16

17 U.S. 316, 431 (1819). That is why all tax legislation

originates in the House of Representatives. U.S. Const.

art. I, § 7, cl. 1. Members of the House “were chosen by

the people, and supposed to be the best acquainted with

their interest and ability,” 1 Annals of Cong. 65 (1789)

(Joseph Gales ed., 1834), and, therefore, most likely to

protect the federal treasury against profligate spending

and limit the Executive’s ability to tax arbitrarily, The

Federalist 66, at 401-02 (A. Hamilton) (Jacob E. Cooke

ed. 1961). As a consequence, judicial review of tax laws

has been framed by the understanding that the “taxing

power is one of the most jealously guarded prerogatives

exercised by Congress.” Air Power, Inc. v. United States,

741 F.2d 53, 56 (4th Cir. 1984).

“(E)xemptions from taxation” therefore “are not to

be implied; they must be unambiguously proved.” United

States v. Wells Fargo Bank, 485 U.S. 351, 354 (1988). That

holds true for tax credits, which “are only allowed as clearly

provided for by statute, and are narrowly construed.”

United States v. McFerrin, 570 F.3d 672, 675 (5th Cir. 2009).

“On this particular ‘precise question’ ... case law does not

provide ‘wiggle room’ for finding ambiguity. This is because

tax credits must be expressed in ‘clear and unambiguous

language.” Oklahoma ex rel. Pruitt v. Burwell, ---F. Supp.

2d ---, 2014 WL 4854543, at *7 (E.D. Okla. Sept. 30, 2014)

(quoting Yazoo & Miss. Valley R.R. Co. v. Thomas, 132

U.S. 174, 186 (1889)); see also Shami v. C.1.R., 741 F.3d 560,

567 (5th Cir. 2014) (“Tax credits are a matter of legislative

grace, are only allowed as clearly provided for by statute,

and are narrowly construed.”).’

2. Chevron deference likewise is inapplicable here because

this [RS regulation involves Congress’s exercise of its Appropriation

power. See Pet. Br. 54-55.

17

Hence, the IRS’s interpretation of Section 36B—a

tax credit—is not entitled to deference even assuming

statutory ambiguity. Because Congress did not “indicate

clearly its intention to delegate to the Executive the

discretionary authority” to grant these tax credits,

Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212, 214 (1989),

there is no basis for deferring to the IRS’s interpretation

of Section 36B. Congress may not “delegate power to

determine whether taxes should be imposed.... [This is]

the difference between delegating the underlying power to

set basic policy ... and the authority to exercise discretion

in administering the policy.” The Constitution of the

United States of America: Analysis and Interpretation,

Congressional Research Service, Sen. No. 112-9, at 93

(2013).

Mayo Foundation v. United States, 131 S. Ct. 704

(2011), illustrates the difference. Unlike here, the issue

in Mayo was not whether Congress had authorized a tax-

exemption regime; no one disputed that Congress had

exempted from certain taxes “a student who is enrolled

and regularly attending classes at such school, college, or

university.” Jd. at 709 (quoting 26 U.S.C. § 3121(b)(10)). The

interpretive issue was whether a medical resident qualified

as “a student” for purposes of the statute. Jd. at 708. In

finding that the IRS was entitled to Chevron deference in

making that narrow determination, the Court merely held

that the IRS—like other administrative agencies—had

discretionary authority to promulgate a rule to define

what made someone a “student” within the meaning of

the statute because Congress could not be expected to

determine the term’s applicability to every circumstance

that might arise. But nothing in Mayo held or implied that

such deference altered the longstanding proposition that

18

the IRS cannot rely on an ambiguous statute to impose

a tax or create a nationwide credit. See Pruitt, 2014 WL

4854543 at *7 n.20.

In any event, the IRS’s claim of deference fails at the

outset because it is simply unthinkable that Congress

would have allowed the IRS to decide for itself whether

to disperse billions of dollars in tax credits annually.

“Chevron deference ... rests on a recognition that

Congress has delegated to an agency the interpretative

authority to implement a particular provision or answer

a particular question.” City of Arlington, Tex., 133 S. Ct.

at 1882. The Court has always been “guided to a degree

by common sense as to the manner in which Congress is

likely to delegate a policy decision of such economic and

political magnitude to an administrative agency.” Brown &

Williamson, 529 U.S. at 133; Util. Air Regulatory Group

v. EPA, 1348. Ct. 2427, 2444 (2014) (“We expect Congress

to speak clearly if it wishes to assign to an agency

decisions of vast ‘economic and political significance.””)

(quoting Brown & Williamson, 529 U.S. at 160).

It defies common sense to think Congress buried in

Section 36B a delegation of unfettered authority for the

IRS to decide whether to spend billions of taxpayer dollars

annually. Thus, even if such legislation were theoretically

eligible for Chevron deference, it is not credible to

presume that Congress surrendered this massive tax

spending authority swb silentio.

The Fourth Circuit hypothesized that “Congress

perhaps might not have wanted to resolve a politically

sensitive issue” or “it might have intended to see how large

a role the states were willing to adopt on their own before

having the agency respond with rules ....” Pet. App. 27a

19

n.4 (emphasis added). But neither theory passes muster.

As noted above, the issue’s political sensitivity cuts against

presuming a delegation here—not in favor of it under

Brown & Williamson and its progeny.

Furthermore, the Fourth Circuit’s speculation that

Congress took a wait-and-see approach concerning

the availability of tax credits on federal Exchanges is

misplaced. The ACA requires the Department of Health

and Human Services to create federal Exchanges in the

event a state fails to establish an Exchange. 42 U.S.C.

§ 18041(c). There was thus no reason for Congress to

wait and see what the states would do before deciding

whether to include what the defenders of the IRS Rule

have described as a “contingency provision.” Pet. App. 34a

(Davis, J., concurring). That is, Congress either precluded

purchasers on federal Exchanges from receiving tax

credits (as Petitioners correctly argue) or it did not (as

the IRS incorrectly argues). But it is quite implausible to

presume that Congress delayed addressing how to grapple

with a known multi-billion-dollar contingency until after

it arose. The Court cannot presume delegation of an issue

of such political and economic significance based on such

shaky speculation. There was no delegation here.

[0 Fundamental Separation Of Powers Principles

Require The Court To Return The Issue Of Tax

Credit Availability On Federal Exchanges To The

Political Process.

The Court must reverse the F ourth Circuit’s judgment

because the ACA’s text commands that result. But far

more is at stake here than a run-of-the-mill statutory

construction dispute. To put it bluntly, the IRS has

20

brazenly rewritten a federal law because the Executive

believes that adhering to the ACA as passed by Congress

will frustrate the health insurance program.

The “safety of our institutions depends in no small

degree on strict observance” of separation of powers.

Union Pac. R.R. Co. v. United States, 99 U.S. 700, 718

(1878). “(T]he lawmaking function belongs to Congress

... and may not be conveyed to another branch or entity.”

Loving v. United States, 517 U.S. 748, 758 (1996). The

Executive may veto legislation he deems unwise subject

to congressional override. But once a bill becomes law, he

must “take Care that the Laws be faithfully executed.”

U.S. Const., art. II, § 3. In short, “the President’s power

to see that the laws are faithfully executed refutes the

idea that he is to be a lawmaker.” Youngstown, 343 U.S.

at 587; Tenn. Valley Auth., 437 U.S. at 194. It is difficult to

recall a more stark violation of this bedrock constitutional

rule than the IRS Rule.

This may “appear ‘formalistic’ ... to partisans of the

measure at issue, because such measures are typically

the product of the era's perceived necessity.” New York v.

United States, 505 U.S. 144, 187 (1992). Indeed, this is not

the first or last time the Executive will claim honorable

intentions as a justification for seizing legislative powers.

That is the central point of having a Constitution with

“high walls and clear distinctions” as “low walls and vague

distinctions will not be judicially defensible in the heat of

interbranch conflict.” Plaut v. Spendthrift Farm, Inc., 514

U.S. 211, 239 (1995). “The Constitution ... divides power

... among branches of government precisely so that we

may resist the temptation to concentrate power in one

location as an expedient solution to the crisis of the day.”

New York, 505 U.S. at 187.

21

Importantly, the Court does not act as steward of

these structural principles to advance any one branch’s

parochial interests nor for reasons of form alone. To be

sure, “disregard [of] structural legitimacy is wrong in

itself—but since structure has purpose, the disregard also

has adverse practical consequences.” Mistretta v. United

States, 488 U.S. 361, 421 (1989) (Scalia, J., dissenting). The

Court acts because, as the Framers learned firsthand,

“{cjoncentration of power in the hands of a single branch is

a threat to liberty.” Clinton, 524 U.S. at 450 (Kennedy, J.,

concurring); see also Loving, 517 U.S. at 756; Sir William

Blackstone, 1 Commentaries on the Laws of England,

146 (1783); The Federalist No. 47 (J. Madison) (Jacob E.

Cooke ed. 1961).

This dispute vindicates the Framers’ concerns. The

IRS’s usurpation of legislative power comes not only at

a steep price to the federal treasury, but to liberty. As a

consequence of the IRS’s decision to rewrite Section 1321,

millions of Americans must pay a tax penalty simply for

choosing “not to purchase health insurance.” NFIB v.

Sebelius, 132 S. Ct. 2566, 2588 (2012) (Roberts, C.J.); see

also Brief in Opposition 5. The IRS Rule also exposes most

employers in states that do not establish an Exchange to

a tax penalty for failing to offer qualified health coverage

to full-time employees. See Pet. Br. 8-9. Only Congress

may impose such tax penalties under the Constitution.

This does not mean that standing up for structural

principles is easy. The Fourth Circuit’s decision appears

to have been driven by the “unforeseen and undesirable

consequences” of enforcing the law as written. Pet. App.

31a; Pet. App. 40a (Davis, J., concurring) (claiming that

“Appellants’ approach would effectively destroy the

22

statute”); Halbig, 758 F.3d at 412 (Edwards, J., dissenting)

(“It is inconceivable that Congress intended to give States

the power to cause the ACA to ‘crumble.’””). The court

simply would not “help to deny to millions of Americans

desperately-needed health insurance” by striking down

the IRS Rule. App. 40a (Davis, J., concurring); Halbig, 758

F.3d at 412 (Edwards, J., dissenting) (“This case is about

Appellants’ not-so-veiled attempt to gut the [ACA].”).

But this is when structure matters most. Adherence

to foundational principles cannot turn on antipathy for

Petitioners’ purported motives or judicial sympathy for

those who would benefit from rewriting the ACA. “The

legitimacy of the Judicial Branch ultimately depends

on its reputation for impartiality and nonpartisanship.”

Mistretta, 488 U.S. at 407. However tempting it might be

for the courts to permit the IRS to expand health care

coverage beyond what Congress authorized, the long-term

institutional damage would be immeasurable. “The role

of this Court is to apply the statute as it is written—even

if [it] think[s] some other approach might accor(d] with

good policy.” Burrage v. United States, 124 S. Ct. 881,

892 (2014).

In any event, like Mark Twain’s death, the report of

the ACA’s demise at the hands of petitioners has been

greatly exaggerated. The IRS Rule made state refusals

to establish Exchanges politically costless. But states

will have a much more difficult choice to make if their

refusal denies their residents tax credits that help make

health insurance coverage more affordable. “Congress

may attach appropriate conditions to federal taxing and

spending programs to preserve its control over the use of

federal funds” and states are free to reject the bargain.

23

NFIB, 132 S. Ct. at 2603. “The States are separate

and independent sovereigns. Sometimes they have to

act like it.” Jd. The IRS Rule obliterates that separate

responsibility.

Further, “if Congress enacted into law something

different from what it intended, then it should amend

the statute to conform it to its intent.” Lamie, 540 U.S.

at 542. Congress has a long history of doing just that.

In the 1940s, for example, the Supreme Court broadly

interpreted the undefined terms “work” and “workweek”

in the Fair Labor Standards Act. The Court concluded

that these terms “encompassed time spent ‘pursu{ing]

certain preliminary activities after arriving ... , such as

putting on aprons and overalls [and} removing shirts.’”

Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 875 (2014)

(quoting Anderson v. Mt. Clemens Pottery Co., 328

U.S. 680, 692-93 (1946)). Congress responded through

legislation to ensure that the law continued to operate

consistent with the legislature’s purpose. The Portal-

to-Portal Act of 1947 legislatively rectified the Supreme

Court’s “disregard of long-established customs, practices,

and contracts between employers and employees.” /d.

(quoting 61 Stat. 84 (1947), as amended, 29 U.S.C. § 251(a)).

More recently, in 2009, the Lilly Ledbetter Fair Pay

Act was enacted to supersede a judicial interpretation

of the charging period set forth in Title VII of the Civil

Rights Act of 1964. Noting “the legislative compromises

that preceded the enactment of Title VII,” the Supreme

Court held that Title VII’s charging period was triggered

on the date an employer made its initial discriminatory

wage decision, not on the date of the most recent paycheck

issued. Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S.

24

618, 630-31 (2007). Congress viewed this interpretation as

“at odds with the robust application of the civil rights laws

that Congress intended,” Pub. L. No. 111-2, § 2, 123 Stat.

5 (2009), and promptly amended Title VII to ensure that

the limitations period for equal-pay claims renews with

each paycheck affected by discriminatory action, id. § 3.

This case is no different. Nothing prevents Congress

from amending the ACA to provide for tax credits for

purchasers in both state and federal Exchanges if that is

what it intended in the first place. As always, Congress is

free to “turn{] to technical corrections” when “it wishes

to clarify existing law.” Exxon Mobil Corp. & Affiliated

Cos. v. C.LR., 1386 T.C. 99, 119 (Tax Ct. 2011). Congress

“must routinely correct for technical errors and sometimes

amend new provisions after enactment to harmonize old

and new laws.” Samuel A. Donaldson, The Easy Case

Against Tax Simplification, 22 Va. Tax Rev. 645, 670

(2003); see, e.g., Tax Technical Corrections Act of 2007,

Pub. L. No. 110-172, 121 Stat. 2473 (2007); Tax Technical

Corrections Act of 2005, Pub. L. No. 109-135, 119 Stat.

2610 (2005); Tax Technical Corrections Act of 1998,

Pub. L. No. 105-206, 112 Stat. 790 (1998); Technical and

Miscellaneous Revenue Act of 1988, Pub. L. No. 100-647,

102 Stat. 3342 (1988); Technical Corrections Act of 1982,

Pub. L. No. 97-448, 96 Stat. 2365 (1983).

If Congress wants to correct any errors it can do so

immediately. “Existing procedures such as suspension of

the rules or proceeding under unanimous consent” give

Congress the tools to fix legislation “on an expedited

schedule.” John C. Nagle, Corrections Day, 43 UCLA L.

Rev. 1267, 1281 (1996). “It should not be hard to secure

legislative correction of [an] alleged judicial error if the

25

courts have in fact misread the Congressional purpose

and the consequences to the revenue are as serious as the

government says.” Paddock v. United States, 280 F.2d 563,

568 (2d Cir. 1960) (Friendly, J.).

That the ACA is politically controversial does not alter

the analysis. See, e.g. Barnhart, 534 U.S. at 438; Scalia &

Garner, supra, at 1615. Nor does the political likelihood

of correction bear on the proper result. “The Framers of

the Constitution could not command statesmanship,” and

“(flailure of political will does not justify unconstitutional

remedies.” Clinton, 524 U.S. at 449, 452-53 (Kennedy,

J., concurring). Regardless of legislative inaction, the

courts “are not at liberty to rewrite [laws] to reflect a

meaning [they] deem more desirable.” Ali v. Fed. Bureau

of Prisons, 552 U.S. 214, 228 (2008). “The Constitution’s

structure requires a stability which transcends the

convenience of the moment.” Clinton, 524 U.S. at 449

(Kennedy, J., concurring). Congress—not the courts—has

been entrusted with “the final say on policy issues.” Ry.

Emp. Dep’t v. Hanson, 351 U.S. 225, 234 (1956).

In the end, this just is not a close case. Separation of

powers principles require the Court to draw a clear line.

But “[njothing prevents the President from returning to

Congress to seek the authority he believes necessary,”

and “judicial insistence upon that consultation does not

weaken our Nation’s ability to deal with danger. To the

contrary, that insistence strengthens the Nation’s ability

to determine—through democratic means—how best to

do so. The Constitution places its faith in those democratic

means.” Hamdan v. Rumsfeld, 548 U.S. 557, 636 (2006)

(Breyer, J., concurring). This Court should too.

26

CONCLUSION

Amici curiae respectfully ask that the Court reverse

the judgment below.

C. DEAN McGRratH, JR.

McGratu & ASSOCIATES

1025 Thomas Jefferson

Street, NW, Suite 110G

Washington, DC 20007

Respectfully submitted,

Bert W. REIN

Counsel of Record

Wiuey Rew LLP

1776 K Street, NW

Washington, DC 20006

(202) 719-7000

brein@wileyrein.com

WILLLAM S. Consovoy

THomas R. McCarruy

J. MICHAEL CONNOLLY

Consovoy McCartuy PLLC

3033 Wilson Boulevard, Suite 700

Arlington, Virginia 22201

Counsel for Amici Curiae

December 29, 2014