Former CBO Director Doug Elmendorf
Doug Elmendorf, the man who led the Congressional Budget Office when the Affordable Care Act was being written, says now that
when the CBO was scoring the proposed legislation
for its budget impact, it was the "common understanding" that every state would be eligible for subsides. That's one more official contradiction to the argument forwarded in King v. Burwell
, in which the challengers posit that Congress used the subsidies to try to force every state to set up an exchange.
"It was a common understanding on the Hill, again on both sides of the Hill, on both sides of the aisle, in late 2009 and early 2010, that subsidies would be available through the federal exchange as well as through state exchanges," Elmendorf said in an interview at the Peterson Foundation fiscal summit.
"And I'm confident in saying that because CBO’s analysis always worked under the view that subsidies would be available under the federal exchange."
Despite all the scrutiny of his office’s cost projections, he said, the assumption of subsidies being available on both types of exchanges was never questioned, he said.
"Our analysis was subject to a lot of very intense scrutiny and a lot of questions, and my colleagues and I could remember no occasion on which anybody asked why we were expecting subsidies to be paid in all states regardless of whether they established their exchanges or not," he said.
"And if people had not had this common understanding about what the law was going to do at that time, I'm sure we would have had a lot of questions about that aspect of our estimates."
Other than a bunch of Republican lawmakers who snapped out of their apparent subsidy amnesia and filed a brief with the court saying of course
they meant to withhold subsidies from their constituents, there is no credible source to back up the plaintiffs' claim in King
. Kind of like how the actual plaintiffs aren't all that credible
It's not hard to imagine Justices Alito, Scalia, and Thomas not giving a fig for the actual evidence of congressional intent here, or the fact that this continues to be the flimsiest of challenges to the law. They've proven time and again that they care far more about advancing their hard-right political agenda than, you know, acting like the highest court in the land. Once again, it's down to Chief Justice John Roberts and Anthony Kennedy to think about things like the institutional integrity of the court.
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