As we approach the March 4 oral arguments for King v. Burwell, the Supreme Court case that may decide the fate of ObamaCare, it's worth delving further into a legal argument that approaches 9/11 truther levels of insanity.
As I observed in a recent piece for The Week, there are two ways that the argument can proceed in its attempt to establish that the Affordable Care Act does not authorize health insurance subsidies on federally established state exchanges. The first is to say that no matter what lawmakers intended to accomplish, they mangled the letter of the law to say that the subsidies will not flow to such exchanges. Whoops.
The other argument, fully embraced by the law's opponents at the Supreme Court, is that legislators intended to deny subsidies to the states — even though that would go against everything they set out to accomplish.
These are both terrible arguments; one would deny millions of people health insurance over the equivalent of a typo, while the other flies in the face of common sense and the historical record. But they permit opponents of the ACA to switch from one to the other as a means of evading devastating objections to any individual argument.
A classic example of a pundit engaging in this dance is Ramesh Ponnuru, who tries to split the difference between the two variants. His column in Bloomberg is a useful distillation of the three stages of Affordable Care Act trutherism.
Ponnuru starts out by suggesting that the letter of the law is clear — "nowhere does the law authorize subsidies for plans purchased on those federally run exchanges." But you can arrive at this conclusion only by using terrible, unworkable methods of statutory construction. You don't have to take my word for it — the brief submitted by major legal scholars, including Ronald Reagan's solicitor general and one of the country's foremost experts in statutory construction, explains this in clear detail.
When you focus on the statute as a whole, rather than on the isolated phrase that appears to confine subsidies to the exchanges established by state governments, it is clear that exchanges established by the federal government on the state's behalf are "[e]xchange[s] established by the State," as the statute defines them. Indeed, the ACA is an excellent illustration of why phrases in statutes should be read in context. Doing so produces a coherent reading of the statute's purpose, whereas the reading of the ACA's opponents, represented by Jonathan Adler and Michael Cannon, produces numerous anomalies and puts the statute at war with itself.
There's a reason why Adler and Cannon haven't been content to rest on the typo argument. It sounds superficially plausible in a seminar room, but in the broader world, people are going to wonder why literally none of the relevant federal or state officials read the statute in accordance with its allegedly clear and unambiguous meaning. (If the statute is not clear and ambiguous, under well-settled precedent the courts are supposed to defer to the judgment of the IRS, which will be responsible for administering the subsidies.)
As a sort of way station between the two arguments, then, Ponnuru proceeds to an argument we can label, "Looks like those clowns in Congress did it again. What a bunch of clowns." In other words, various members of Congress had different intentions, many weren't really paying careful attention — who can say what Congress was really trying to do? As Ponnuru writes, lawmakers are "generally not detail-oriented people."
There is a grain of truth to this argument — Congress is a "they," not an "it," as social scientists say, and we should be careful in making broad generalizations. Nonetheless, everybody makes reasonable judgments about what Congress is trying to accomplish, not least because it would otherwise be impossible to practice law or interpret history. We can understand why the Wilmot Proviso, for example, broke down on sectional rather than partisan lines without claiming to know the precise subjective intentions of each and every member of Congress.
And in this case, the idea that we can't reasonably infer what Congress was trying to do is absurd. The amicus brief written by Nicholas Bagley, Thomas Merrill, Gillian Metzger, and Abbe Gluck is particularly strong on this point. Federal backstops are not some mysterious new innovation of the ACA — they're a bog standard part of cooperative federalism. They're inserted in statutes when Congress wants to ensure that benefits of programs administered primarily by states will flow to citizens even if the states decline to participate.
Congress did not intend for the federal backstop to fail, and it was universally understood that the insurance exchanges could not work without tax credits and the individual mandate. There's only a mystery here if you hate the ACA so much that you've become willfully blind to what it's trying to accomplish and how it relates to previous statutes in the New Deal/Great Society tradition.
As such, it makes sense that the ACA's opponents would develop an alternate history that can actually reconcile their reading of the statute with an explanation of Congress' intentions. The Supreme Court is much less likely to strip insurance from millions of people based on what the architects of the suit initially identified as a "glitch," than if it convinces itself that it's upholding the will of Congress.
Ponnuru doesn't go quite so far as to say that he's "100 percent certain" about what the ACA's drafters were setting out to accomplish, but he does argue that the Adler/Cannon interpretation makes sense. Denying subsidies on federally established exchanges, Ponnuru asserts, is "not at all absurd in principle." After all, states that don't comply with the requirements of Medicaid don't get the money — why shouldn't we think that the same principle of coercion is at work in the exchanges?
But the contrast with the ACA's Medicaid expansion destroys Ponnuru's argument rather than fortifying it. The Medicaid expansion shows how Congress proceeds when it's actually trying to coerce states. To state the obvious, if you're making a threat, you don't keep the consequences of failing to comply a secret. On the flip side, legislators were well aware that some states would not or could not establish their own exchanges, and this is why they wanted to establish a backstop.
The weakness of all these arguments explains why apologists for the latest legal war on the ACA like to alternate between them. If a critic points out that you should take the context of the entire statute into account, just say that Congress was consciously trying to coerce the states, not create a federal backstop. When people point out that this is nonsense, return to asserting that Congress messed up the language. Repeat as necessary.
Hopefully, at least five justices will see through this game of legal three-card monte.