Sam Stein over at HuffPost has an excellent piece of
reporting regarding the latest Obamacare challenge before the U.S. Supreme Court (King v. Burwell). Having filed public record requests with multiple states and the Department of Health and Human Services, and having read tens of thousands of emails and other communications, Sam Stein is able to confirm a crucial fact that I thought was overlooked a bit in the technical legal arguments made before the Supreme Court:
Among all the emails, letters and press releases reviewed, there was not a single instance of an administration official warning that if states decided not to run their own health care exchanges, their citizens would not be eligible for the tax credit subsidies. Nor was there a single instance of a state official recognizing or anticipating such consequences. As states faced the choice of establishing their own exchange, creating a hybrid exchange with the federal government, or letting the federal government have full control, no one appeared to be discussing what plaintiffs now say is the most consequential financial element of the whole arrangement. Only when the issue began percolating on conservative news outlets, and had life breathed into it from conservative think tanks, did officials start to notice.
While noting that any attempt to fully recreate a public record is impossible, Mr. Stein still makes the crucial point:
But if the subsidies were, in fact, structured in a coercive way, then the lack of warning from the federal government makes little sense, and the lack of any debate or apparent distress among state officials is truly remarkable.
You should give the full piece a read, and this point - that absolutely no one could credibly claim that they read the law the way plaintiffs argue now - always seemed to me to be a crucial element of this case. If the ACA was meant to pressure states into taking action, how can it be that no one understood the states to be pressured in any manner? And talk about
"judicial overreach"! If the ACA was going to fail, and fail in the courts, this case simply is the most absurd and frivolous vehicle that I can imagine.
What was alarming, however, is that having read the main briefs and the oral argument, the external reality well documented by Mr. Stein did not seem to play much, if any, role that I could remember, and certainly not a prominent role. Instead, this potentially lethal challenge to Obamacare seemed like it could be argued and determined in that peculiarly Republican invention: the bubble. A make believe world where inconvenient facts are not even acknowledged.
However, I went back to the transcript of the oral argument in King v. Burwell, and must admit that the Obama administration did, in fact, make this point three times. Per the "bubble," the problem was not that the Solicitor General ignored this reality, but that when he brought reality up . . . it had no currency with the Republican justices. They just moved on. For those remotely interested in Supreme Court arguments, below are the three instances where the Republican justices "wrestled" with the undeniable fact that no one ever thought the law operated this way:
GENERAL VERRILLI: . . . Their reading forces HHS to establish rump Exchanges that are doomed to fail. It makes a mockery of the statute's express statute's express textual promise of State flexibility. It precipitates the insurance market death spirals that the statutory findings specifically say the statute was designed to avoid, and of course it revokes the promise of affordable care for millions of Americans. That cannot be the statute that Congress intended.
JUSTICE SCALIA: Of course it could be. I mean it may not be the statute they intended. The question is whether it's the statute that they wrote . . . .
and . . .
JUSTICE ALITO: Well, Mr. General Verrilli, let me ask you this about notice. We get lots and lots of amicus briefs from States. And we got two amicus briefs from States here; 34 states I think is that's the number of States that declined to or failed to establish a State Exchange?
GENERAL VERRILLI: Correct.
JUSTICE ALITO: Now, if they were all caught off guard and they were upset about this, you would expect them to file an amicus brief telling us that. But actually, of the 34, only 6 of them signed the brief that was submitted by a number of States making that argument - 23 States, 23 jurisdictions - submitted that brief; 17 of them are States that established State exchanges. Only 6 of the States that didn't establish State exchanges signed that brief. How do you account for that?
GENERAL VERRILLI: So, I I guess I'd make two points about that, Justice Alito. First, you've got 22 States there, States in both camps, all of whom told you that they didn't understand the statute that way. Now, with respect to the other 8 States that filed the amicus brief on the other side, I actually think there's quite an important point that goes to their understanding of what this Act did. Remember, this is an IRS rule that we're talking about here, and the IRS put out a notice of proposed rule making saying this is what we intend to do, and several of these States Oklahoma, Indiana, Nebraska they filed rulemaking comments in that in that proceeding. And if you look at those rulemaking comments you will see that they address a number of issues, and they say nothing, nothing about the the issue that's before the Court now. So if they really understood the statute as denying subsidies in States that did not set up their own exchanges, that would have been front and center in their rulemaking comments, but they said nothing about it and I think that tells you a good deal about where what what everybody understood that this statute was . . .
JUSTICE ALITO (interrupting): Well, there's another point on notice on this Pennhurst argument that seems curious to me. . . . [switches topic]
and . .
GENERAL VERRILLI: And the third point, seems to me, is the notice point, that if, indeed, the plan was, as Mr. Carvin said, that every State was going to establish an Exchange for itself and that that would cure all of the massive statutory anomalies and textual anomalies and absurdities and impossibilities that his reading provides for, if that was really the plan, then the consequence for the States would be in neon lights in this statute. You would want to make absolutely sure that every State got the message. But instead what you have is a subclause in Section 36B, which is a provision that addresses the eligibility of individual taxpayers for taxing purposes.
JUSTICE SCALIA: This is not the most elegantly drafted statute. It was it was pushed through on expedited procedures and didn't have consideration by a conference committee, for that that statutes usually do. What what would be so surprising if if, among its other imperfections, there is the imperfection that what the States have to do is is not obvious enough? It doesn't strike me as inconceivable.
GENERAL VERRILLI: . . . . The language here in 36B was not the product of some last minute deal, it wasn't the product of scrambling at the end. The language that emerged here, the statutory structure with the language of 36B about tax credits, the language that's in 1311, the language that's in 1321 was the product of the Senate Finance Committee markup, which went on for weeks and weeks. It was a public it was a public hearing. It frankly, it was covered by CSPAN. You can go watch it on the CSPAN archives if you want to; and you will see coming out of that that the that the understanding, the clear understanding was with this statutory setup would result in subsidies being available in every State.
JUSTICE SCALIA: There were senators, were there not, who were opposed to having the Federal government run the whole thing, because they thought that would lead to a singlepayer system, which which some people wanted. And the explanation for this provision is it prevents it prevents the the Federalization of of the entire thing.
GENERAL VERRILLI: No. Justice Scalia, I . . .
JUSTICE SCALIA: That's that's certainly a plausible explanation . . .
GENERAL VERRILLI: No.
JUSTICE SCALIA: . . . as to why the provision is there.
GENERAL VERRILLI: Mr. Carvin has floated that as an explanation and he and he suggests that it was Senator Ben Nelson who required it. We there is absolutely no contemporaneous evidence, none whatsoever, that anybody thought that way, that the the solution to the problem that Your Honor's identified is what Congress did by having States have the option to set up their own Exchanges with State-by-State Federal fallbacks rather than a national system. Senator Nelson has made clear, he has stated that he had no intention of the kind. There's no contemporaneous evidence at all that anyone did. And I do - and what Mr. Carvin has suggested is that this was the product of some deal to try to get votes - so the Act could get passed. What I would suggest to Your Honor is that there is objective proof that that is not true. The the provisions in the the Act that were negotiated at the end to secure the necessary votes are in Title X of the Act. And if you look in the in the Act, Pages 833 to 924 that's Title X you can see all of the amendments. Not a single one has anything to do with the statutory language before the Court now.
JUSTICE SCALIA: [switches to a new argument]
So, rereading the argument, I realize that the Obama administration did make arguments of the sort raised in Mr. Stein's reporting, although maybe not as exhaustively documented as by Mr. Stein. But the problem isn't with the Solicitor General's argument, or the level of proof, or the shared reality that no one seriously disputes. The problem is if, as a Republican justice, you just don't care. . . .