One of my long-standing pet peeves is the so-called congressional brief that try to persuade a court of what Congress really meant. I expressed these concerns when Senators McCain, Graham, and Ayotte to intervene in Hedges v. Obama (see here, here, and here), and when Senator McConnell intervened in the recess appointment case (here). I noted similar objections when 6 Democratic members of Congress, who were involved in steering the Affordable Care Act through the legislative gauntlet in 2009 and 2010, filed a brief in Halbig v. Sebelius.

In that case, Democratic members of Congress, their staffers, and other people involved in the process submitted briefs insisting that Congress really didn’t mean to limit subsidies to state exchanges. I am highly skeptical of these briefs, as they represent post-enactment legislative history advanced as a form of advocacy for a court case. If they were so sure what Congress intended, they should have written the statute differently–you know like “established by the state or federal government.” More to the point, as I will discuss in Unraveled, no one in Congress paid any attention to this issue at all, so their johnny-come-lately statements are not helpful. The Supreme Court’s decision in King didn’t even wade into legislative history.

In Judge Collyer’s decision in House of Representatives v. Burwell, ruling that the President was illegally spending money that was never appropriated, she took a well-deserved dig to a brief filed on behalf of eleven Democratic members of Congress. Amici argue in at least 8 tell us what “everyone” understood.

In short, the law reflects what everyone understood at the time: the premium tax credits and the cost-sharing reductions are both integrally connected and critical to the effective operation of the law.

Subsequent actions by Congress only confirm what everyone understood at the time the law was enacted.

Likewise, plaintiff’s interpretation conflicts with subsequent congressional action that confirms what everyone understood at the time: the ACA provides that the premium tax credits and cost-sharing reductions are commonly funded by the permanent appropriation in 31 U.S.C. § 1324.

Plaintiff’s argument to the contrary is wrong, and it is inconsistent with the way everyone in Congress understood the law to operate at the time it was enacted.

That Congress did not do so only underscores that everyone involved in the drafting of the ACA understood that such future appropriations would be unnecessary because those payments would be made out of the permanent appropriation provided in 31 U.S.C. § 1324.

Finally, another provision of the ACA also confirms what everyone at the time understood.

As everyone understood at the time the law was enacted and as the law itself makes clear, those payments were funded out of the permanent appropriation provided in 31 U.S.C. § 1324.

In sum, the text and structure of the ACA confirm what everyone in Congress understood at the time the law was enacted and in the years since: the cost-sharing reductions, like the premium tax credits, are critical to the effective operation of the ACA, and under the legislative plan established by the ACA, both were to be paid out of the same permanent appropriation, 31 U.S.C. § 1324.

I appreciate the rhetorical point, but eleven members of Congress–from Nancy Pelosi to Sander Levin–does not tell us what “everyone” understood when the ACA was being developed. What tell us what “everyone” understood–and voted on–is the text of the statute.

Judge Collyer agreed:

The Court thanks amici Members of Congress for their brief. See Br. Amici Curiae Members of Congress [Dkt. 63]. However, their recollections as to what “everyone at the time understood,” id. at 22, are anecdotal and not evidentiary.

Pelosi, in particular, has some chutzpah in telling us what “everyone understood,” as she famously said we have to pass the bill to find out what’s in it. Now that a judge has looked at it, we know what’s in it.