The lawyers arguing to overturn Obamacare's subsidies before the Supreme Court next month have a couple of things to prove. One of those things is that the plaintiffs they've rounded up in the case are actually qualified to sue. That's
blowing up around them, but assuming they get their plaintiff ducks in a row, they also have to prove that Congress meant to do something really sneaky—that it devised a plan to punish states that didn't create their own insurance exchanges by withholding federal funds from them AND that it kept that plan secret from the states. Implausible as it seems, that's what they're going with, despite reams and reams of legislative and reporting history that argues otherwise. The question they're putting before the court is whether Congress intended "to make the availability of the Affordable Care Act’s financial assistance contingent upon the actions of state officials."
Here's some more evidence to show that no, the financial assistance was not intended to have such strings. It's an email exchange from January 2010 as the House and Senate and White House were negotiating the final form of the bill, between reporter Jonathan Cohn and John McDonough, an adviser to the late Senator Edward Kennedy (D-MA), who worked on the legislation. Cohn had appeared on a radio show, and was asked "whether the Senate's bill allowed states to opt out of creating exchanges or the law’s other insurance reforms." He wasn't sure, so he asked McDonough.
So there's Cohn asking, can states opt out of either the Medicaid expansion or the exchanges, and the answer from the person helping to write the law is no, they can't opt out of Medicaid (this is before the Supreme Court ruling) and yes, they could opt out of creating exchanges "but then the feds come in and do it instead."
To Nicholas Bagley, a University of Michigan law professor who worked on two amicus briefs opposing the lawsuit, that contrast is telling. "[McDonough] knew full well Congress couldn't force the states to participate in Medicaid," Bagley told me. "What he meant was that the stakes were too high for that to be a realistic option. But the very next thing he says is that opting out of the exchanges was a realistic option. On the plaintiffs' theory, how could that possibly be? Just as no state could have been expected to opt out of Medicaid, so too no state could have been expected to opt out of the exchanges if billions of dollars were on the line."
"If the plaintiffs were right," Bagley went on, "McDonough would've said 'no' to both questions. The fact that he didn't is powerful evidence that Congress never meant to threaten the states into establishing exchanges."
It's powerful evidence that five of the Supreme Court's nine justices might very well ignore, but it's also one more big chink in what was already a poorly constructed case.