Sen. Orrin Hatch (R-UT) has really been twisting himself in knots over the
King v. Burwell challenge to Obamacare. He's been
arguing with himself for weeks over this, since a
Wall Street Journal op-ed he wrote in 2010 was resurrected. In that column, Hatch wrote:
A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government. [emphasis added]
That seems awfully clear. But on Monday, Hatch
continued to argue that what he said then—when the law had just passed—was not what he meant, or something.
In his statements about the case, he has said that the controversy over the law's meaning is not even a close call—a sentiment he repeated during an appearance at the Heritage Foundation on Monday. "The incentive for states to act also could not be more clear," Hatch said. "If a state fails to establish an exchange, its citizens lose out on millions—perhaps even billions—of dollars in subsidies." […]
Near the end of Monday’s remarks, Hatch talked about that op-ed, which resurfaced a few weeks ago, and accused Obamacare defenders who have cited it of "twisting my words." The subject of the op-ed, Hatch said, was not tax credits. “The op-ed is about the constitutionality—or rather, the unconstitutionality—of Obamacare, whereas King is about the meaning of a specific Obamacare provision," Hatch said. "Different issues, different questions, different analysis."
They sure don't seem like different issues, since the 2010 version of Hatch very clearly and unconditionally writes that setting up an exchange is "not a condition for receiving federal funds." He was talking about federal funds not being withheld, not being conditional in the law. Which now, five years after the fact, he says it is. Admittedly, that wasn't his focus in the 2010 column, but it was an important addition to his claims about why the law is unconstitutional (back when he was trying to make a different case, for a different court, to gut the law). He made a point of saying there wasn't coercion from the feds on the states, and further, that the federal government was designated to step in—without jeopardizing subsidies—and that
that was his problem with the law, that it denigrated the states.
Actually, Hatch arguing with himself is kind of like Justice Antonin Scalia's habit of reversing himself. They believe what they believe until it's politically convenient to believe—and argue—the opposite.