Former Sen. Ben Nelson is at the center of a Supreme Court challenge to the Affordable Care Act over tax subsidies to help millions of Americans afford healthcare insurance coverage.
The Nebraska Democrat wanted changes in the law after it was first proposed in 2009, and called for states to take the initiative in creating healthcare insurance exchanges,
according to The Washington Post.
The Obamacare challengers are using his comments to back their claim that Congress was using tax credits to entice states into establishing the exchanges, rather than having the federal government establish its own central exchange, eventually called HealthCare.gov.
But now Nelson, who retired in 2011, says in a brief filed by Democrat congressional leaders that the Supreme Court case, King v. Burwell, against Obamacare, is way off base, the Post reported.
"I always believed that tax credits should be available in all 50 states regardless of who built the exchange, and the final law also reflects that belief as well," Nelson wrote in a letter to Democrat Sen. Bob Casey of Pennsylvania, who had asked for Nelson's opinion on the lawsuit.
"In either scenario — a state or federal exchange — our purpose was clear: to provide states the tools necessary to deliver affordable healthcare to their citizens, and clearly the subsidies are a critical component of that effort regardless of which exchange type a state chooses."
To win his vote in 2009, then Senate Majority Leader Harry Reid arranged a controversial deal that gave Nebraska full federal funding of a proposed Medicaid expansion, the Post reported. Called the "Cornhusker Kickback," the deal was canceled before the bill was passed.
The question, "What does Ben Nelson want?" has always been central to the Obamacare lawsuit, the Post noted.
In March, the Supreme Court justices are set to consider the case filed by four Virginia residents seeking to block the subsidies in the 36 states which come under the HealthCare.gov umbrella.
The appeal says that the Obama administration is engaging in a "gross distortion" of the law's actual language by granting billions of dollars in tax credits to people in those states.
The
legal dispute centers on a four-word statutory phrase that says people qualify for tax credits when they buy insurance on an online marketplace "established by the state."
Those words are significant because only 14 states have set up their own marketplaces, known as exchanges. The other 36 states have left the job to the federal government, as the law's architects say it permits.
The question is whether people can collect the subsidies even if they buy policies on the federal exchange.
The Obama administration states that it would be nonsensical to pass a bill meant to provide insurance coverage to all Americans and then limit the tax credits that make the plan possible to just the 14 states which opted out of the federal exchange, according to the Post.
But Washington lawyer Michael Carvin, who filed the case for the challengers against Obamacare, said: "For Nelson and some other senators, it was important to keep the federal government out of the process, and thus insufficient to merely allow states the option to establish exchanges, as the House bill did.
"Rather, states had to take the lead role, which, given the constitutional bar on compulsion, required serious incentives to induce such state participation."
However, in the brief filed by Democrats countering the lawsuit, Nelson said that "state legislators understood that tax credits would be available to their citizens regardless of whether their states set up their own exchanges."
The case is due to be heard starting March 4, with a decision from the nation's top court planned for June.
Analysts say a ruling blocking the tax credits could possibly create a death spiral for Obamacare, making other provisions ineffective and potentially destabilizing insurance markets in much of the country.
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