The plaintiff pool.
Brian Beutler has a
terrific deep dive into the origins of the
King challenge to the subsidies, essentially a seething hatred in search of a vehicle, any vehicle no matter how wobbly, to bring the law down. Which is really just a proxy for destroying their real target, President Obama. Despite all their fever dreams of impeachment, reality intervened—he hasn't done anything impeachable. But his law, with enough money and enough partisan judges on their side, that they could destroy. So it isn't any wonder that the plaintiffs they scraped up aren't really people who are harmed by the law, but people who hate the president, "zealots and eccentrics who signed on despite the fact that the law hasn't harmed them in any tangible way."
Here's how it all started.
The idea that the law might, by one narrow reading, withhold subsidies from certain states first gained purchase on the right more than four years ago, at an American Enterprise Institute conference devoted to devising a legal strategy to eliminate the law. At this event Michael Grieve, the chairman of the Competitive Enterprise Institute, which has financed the King challenge, infamously said of the ACA: "This bastard has to be killed as a matter of political hygiene. I do not care how this is done, whether it's dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it. I don't care who does it, whether it's some court some place, or the United States Congress. Any which way, any dollar spent on that goal is worth spending, any brief filed toward that end is worth filing, any speech or panel contribution toward that end is of service to the United States."
Note that this meeting happened months before the IRS released its rule, interpreting the law to say that subsidies would be available to everyone based on income, not dependent on whether they got their insurance on a state or federal exchange. But even at this point—before they knew how it was to play out—conservatives were working on how to attack the exchanges and the subsidies. Interestingly, their initial take was the reverse of what ended up being the challenge. Thomas Christina, an associate deputy attorney general under President Ronald Reagan, identified the five-word phrase at the heart of the case. Based on his reading, he was advising attacking the law because it was too coercive, forcing states to establish exchanges, and because of
that would be unconstitutional. That might have actually been a stronger challenge than what they ended up with. Instead of whack-job people complaining that the government was going to force money on them so they could buy health insurance (surely the cruelest tyranny ever imagined) they could get whack-job people being unfairly left out of a government system.
The point is, whatever the IRS rule that emerged, these conservative "thinkers" were going to sue over it, even if it meant cobbling together a case made of a whole cloth. Which is precisely what they did, as Beutler writes, "fabricat[ing] a new legislative and political history of the Affordable Care Act." That legislative and political history has been thoroughly debunked, just as much as the plaintiffs have been exposed as a bunch of kooks who quite possibly don't have real standing to sue.
That fabric they manufactured is unraveling around them, exposing them as the unprincipled partisan hacks they are. But that's nothing compared to the egg on the Supreme Court's face for even taking this turkey of a case. Imagine how they'll look if they actually rule for the nut-jobs.