Jonathan Chait wrote yet another article pointing out what should be obvious, Former Senate Republicans Admit Obamacare Lawsuit Is Crazy. This is in reference to King v Burwell, where four little words that contradict many other passages in the Obamacare text are supposed to be read out of context and used to deprive people of subsidies with they are buying insurance on federally run exchanges. The argument that the plaintiff is making is that the intent of the law was to twist the arms of the states and make them set up their own exchanges by disallowing subsidies on federal exchanges.
It turns out that no one in power actually thought this. Instead, Congress had just assumed that the states would set up their own exchanges — well into the drafting of the bill. Later on, someone realized that there would be some states that for whatever reasons wouldn’t set up their own exchanges. Thus the federal exchanges were born. So the infamous four words — “established by the State” — was just a drafting error. Everyone knows that. But it is a common conservative tactic to pretend to be more ignorant than anyone in history. It is often the only way that they can argue in favor of their own screwed up policies. See, for example, supply side economics.
The law on this seems very clear, and the fact that three justices (Scalia, Thomas, and Alito) are almost certain to side with the plaintiff should disturb the whole country. During the hearing, Antonin Scalia noted that it didn’t matter what the intent of the framers was; what mattered was what the law said. Fair enough. But in previous arguments, Scalia (along with the rest of the Supreme Court) has argued that a law doesn’t become unconstitutional just because it isn’t written well. The law has to be seen in total. But I’m sure for the Ideological Three, that’s only true when doing so would bring about the decision they want. In this case, they badly want to destroy Obamacare.
What I think is amazing is that whether or not a state set up an exchange is a minor thing. It certainly isn’t something important enough to take such a draconian approach to. Brian Beutler made a great point when he wrote:
In order to conclude the latter, you have to think that Democrats are like the Jews of Borat’s fantasy: they are evil for its own sake. And the truth is that if you listen to hate radio (or to a slightly smaller extent Fox News), you will hear exactly this framing. But it should be clear to anyone that this is not who Democrats are. They may be (and quite often are) stupid. They may be (and almost always are) beholden to special interests. But they aren’t in the business of destroying their own legislation. Think about another conservative canard: “Obamacare is part of a socialist takeover of America!” If that’s the case, why would all those closet socialists seek to destroy their own socialist legislation? It makes no sense.
Of course, it isn’t supposed to make sense. No one — Really: no one! — believes this nonsense about trying to coerce the states into setting up their own exchanges. This is just the best justification that the conservatives could come up with to justify this lawsuit. And the silliness of the justification shows just how ridiculous the lawsuit is.