The administration has filed a brief with the Supreme Court, answering the challenge to Obamacare in
King v. Burwell. The plaintiffs argue that the IRS has incorrectly interpreted the statute of the law by allowing subsidies to everyone who qualifies financially. They argue that Congress intended the subsidies to only be available to people buying insurance on exchanges set up by the states, an argument no one—
including Republicans in Congress—seemed to have noticed until this case was filed. It turns out, neither did the dissenting judges in the original challenge to Obamacare. The administration is
using that fact in their brief.
In one section the brief quotes the conservative justices acknowledging that the Democratic-led Congress "thought that some States might decline ... to participate in the operation of an exchange." The aim is to rebut the challengers' contention that Congress expected every state to set up an exchange and was blindsided when some three dozen declined to do so. […]
In a second section of the brief, DOJ quotes the conservatives in NFIB v. Sebelius saying Congress created a "backup scheme" by setting up a federal exchange. […]
In a third section of the brief, DOJ quotes a chunk of the 2012 dissent which suggests that restrictions on the subsidies would reduce the incentives of insurers to sell plans, and individuals to buy plans. As a result, "the exchanges would not operate as Congress intended and may not operate at all." […]
The government's brief argues that if the challengers are right that Congress purposefully withheld subsidies as a threat to encourage states to set up exchanges, it would make little sense to create a federal exchange that would be "doomed to fail."
The justices, presumably, had done their job by reading the statue or at least making their clerks do it and report back. Clearly, there wasn't a question in their minds at the time of what Congress intended to do about subsidies.
Of course, this isn't too likely to make a difference with one of the dissenters, Antonin Scalia. In that original challenge to the law's mandate, Scalia's arguments in another case, a marijuana case called Gonzales v. Raich, were used in an administration brief to try to sway him. That didn't work. Scalia has little enough principle, and more than enough right-wing ideology, to ignore precedent. Even his own.