One of the key architects of the Affordable Care Act made little-noticed comments in 2012 that could provide the law's conservative challengers a major boost in the most high-profile, ongoing challenge to undo it.Nicholas Bagley:
Earlier this week, the D.C. Circuit Court of Appeals, considered the second-most powerful court in the U.S., threw out an IRS regulation that helps the federal government hand out key subsidies under the Affordable Care Act. The court sided with plaintiffs, who argued the law specifically only allows states that run their own exchanges to provide subsidies to help lower-income people buy health insurance.
Supporters of the law have called the challenge unserious. But conservatives who support the plaintiffs in the case — Halbig v. Burwell — say one of the men that makes their case is Jonathan Gruber, the MIT economist who was one of the authors of the Massachusetts health law that served as the model for Obamacare.
Late Thursday night, comments from Gruber in 2012 were unearthed by the Competitive Enterprise Institute's Ryan Radia. During a 2012 question-and-answer session following a lecture, he made the same basic argument aboutt the point of the lawsuit.
But if you think what Gruber said is some evidence about what the ACA means, you can’t ignore other, similar evidence. That’s cherry-picking. So go ask John McDonough, who was intimately involved in drafting the ACA and is as straight a shooter as there is: “There is not a scintilla of evidence that the Democratic lawmakers who designed the law intended to deny subsidies to any state, regardless of exchange status.” Or ask Senator Max Baucus’s chief health adviser, Liz Fowler. She says the same thing. Or ask Doug Elmendorf, the current CBO Director: “To the best of our recollection, the possibility that those subsidies would only be available in states that created their own exchanges did not arise during the discussions CBO staff had with a wide range of Congressional staff when the legislation was being considered.” Or ask Peter Orszag, then-OMB Director: “[A]s someone who was there, [there is] zero chance this was the intent (as opposed to typo/poor drafting).”Fascinating to watch premature victory jigs by conservatives who are working the refs to establish a narrative. Bagley has it right. In any case, we'll talk again after appeal.
Or ask Jonathan Cohn or Ezra Klein, both of whom followed the deliberations over the ACA closely. Neither heard a whisper about any supposed threat. Or ask Abbe Gluck, a law professor at Yale who details how “a basic understanding of the ACA’s legislative process makes clear that Congress intended for the subsidies to be available on the federal exchanges.” Or ask Aaron, who wonders, if this threat was so clear, why TIE never mentioned it. “Do you think we would have ignored this? We wouldn’t have been concerned?”
Better still, ask the states, which were on the receiving end of the supposed threat.
More politics and policy below the fold.
When the D.C. Circuit Court ruled this week that the Affordable Care Act unambiguously prohibits subsidizing health plans on federally-run exchanges, raising the possibility that the Supreme Court might gut the law on second pass, I argued that an adverse ruling in Halbig v. Burwell would actually be bad politics for Republicans: that the pressures such a ruling would create might be enough to divide Republicans and force Republican governors and members of Congress to address the resulting inequities.That's because there's a huge difference between getting something you don't have yet, and taking away something you already have.
The good news is, we have a pretty good, recent, real world example of how these pressures work. And it bodes pretty well for supporters of the Affordable Care Act.
It's possible that after an adverse ruling in Halbig, the American health care system would reach quasi-stable equilibrium. Bluer states would reap all of the ACA's benefits, redder states would enjoy none. I examined that possibility here. New York magazine's Annie Lowrey drew a comparison between an adverse Halbig ruling and the Supreme Court's decision to make the ACA's Medicaid expansion optional. As a result of that ruling, nearly two dozen states have declined to expand Medicaid leaving millions of low-income Americans stuck in the coverage gap.
But I don't think Medicaid expansion is the proper analogy.
More from Dana Houle:
[What] Beutler didn’t discuss was the Democratic response to “Democrats Republicans Divided! (Halbig Edition).” The situation in Michigan suggests that it may be an effort to exploit those Republican divisions. That’s what Mark Totten, Michigan’s Democratic candidate for AG, did with an aggressive op-ed in today’s Detroit News:Louise Radnofsky on another angle:
A federal court accepted Attorney General Bill Schuette’s argument that hundreds of thousands of Michigan families are ineligible for federal tax credits to purchase health insurance. If the ruling stands, Bill Schuette will have denied working Michigan families tax credits averaging $4,700…Think about that. Michigan’s Attorney General chose to champion a lawsuit to take almost two months’ worth of paychecks from a half million Michigan families.In 2010, attacking Obamacare helped the GOP win the House. In 2012 Barack Obama didn’t run from Obamacare, but it wasn’t the lynchpin of his campaign. But if Beutler is right about Republican divisions, and Totten’s populist response is the first of many such reactions, 2014 could be marked by a vigorous Obamacare counterattack.
A number of states are scrambling to show that they—not the federal government—are or will soon be operating their insurance exchanges under the 2010 health law, in light of two court decisions this week.David Dow:
The efforts are aimed at ensuring that millions of consumers who get insurance through the exchanges would be able to retain their federal tax credits if courts ultimately rule against the Obama administration.
Beginnings and endings are not always apparent when they occur. The modern death-penalty era began on July 2, 1976, when the Supreme Court decided the case of Gregg v. Georgia. But we did not actually know it had begun until Jan. 17, 1977, which was the date the State of Utah executed Gary Gilmore by firing squad.
The thing about the firing squad, though, and most all other methods of execution the States adopted—including hanging, the electric chair and the gas chamber—is that they are not the least bit subtle. When you shoot somebody, or hang him, you know you are killing him. The death penalty, however, is the sausage factory of America’s legal system: Nobody wants to know what is actually going on.
So the states eventually embraced lethal injection as the preferred method of killing condemned murderers. Now we could all pretend that the process was nothing more than a sterile implementation of proportional punishment. Sure, we were still killing somebody, but the actual act of killing the condemned looked like something you might see on the medical channel. People sometimes ask me what it is like to witness an execution, and I tell them the most powerful thing about it is walking outside the prison after it is over, into the bright light of day, and seeing that the State has just killed someone, and the citizens don’t have a clue.
We do know, however, when the end of the modern death-penalty era began: April 29, 2014. That was the day we could no longer remain willfully naive. It was the date Oklahoma executed Clayton Lockett.