ACAP Amicus Curiae Brief in Moda v. United States

ACAP files this brief to inform the Court of the harm that the decision below would wreak on smaller insurers that operate outside of the District of Columbia’s halls of power. Most obviously, the ruling below would turn the risk-corridors program into an enormous cautionary tale about why the business community cannot trust the United States government to make good on its statutory promises. Sadly, that lesson would hit Main Street much harder than Wall Street. ACAP’s members are smaller than other insurance carriers and rely more on the ACA marketplaces as their profit centers. As a result, they are less able to gamble on uncertain government promises of payment. In addition, the ruling below starkly illustrates the disadvantages that smaller businesses face when courts rely on obscure snippets of legislative history about later-enacted appropriations
bills to re-write existing statutory obligations. The Court should grant certiorari to correct these problems.

The Petition explains how, when it comes to payments from the federal coffers, the Federal Circuit has licensed Congress to “promise boldly [and] renege obscurely”. (Pet. 3.) Worse yet, it has licensed Congress to renege obscurely after an entire industry has entered a new line of business, relying on an assurance of government support. As a result, this case warrants comparison to Lucy Van Pelt pulling the football away from Charlie Brown—with our nation’s government cast as the capricious bully.

View the full article »