Neil Seigel summarizes the problems with the hackwork of the 2 (of 8) federal judges who accepted the latest and possibly very weakest ad hoc challenge to the ACA perfectly:
Halbig and King (plus the Indiana and Oklahoma cases) are different. I can accept as reasonable, even if ultimately unpersuasive, the argument that the relevant provisions of the ACA are ambiguous. What I cannot accept as reasonable or responsible, however, is the argument—accepted by the D.C. Circuit panel majority in Halbig—that the ACA Congress clearly and unambiguously accomplished what no Member of Congress, no one in the Congressional Budget Office, none of the four dissenting Justices in NFIB v. Sebelius, and no state official realized that Congress had accomplished when it passed the ACA: self-destructively limit the tax subsidies that make health insurance affordable for millions of Americans to those who have the good fortune of happening to reside in states that set up their own health insurance exchanges.
As we’ve discussed before, the bolded fact is critical — we’re being asked to believe that Congress “clearly and unambiguously” did something that both makes no sense on its face and that neither federal officials nor state officials (some who certainly would have established exchanges had they thought their citizens wouldn’t be eligible for the tax credits) thought it did.
Trying to get around this problem, some conservertarians who are gleeful over the prospect tens of millions of people being denied medical care and hence determined to stop the legislation from working believe they have a smoking gun: a youTube video featuring ACA “architect” Jonathan Gruber seeming to claim that subsidies would not be available on federally established state exchanges. Well, I happen to have Jonathan Gruber right here, and:
Among those who say they are surprised by the statement is Gruber himself, whom I was able to reach by phone. “I honestly don’t remember why I said that,” he said, attempting to reconstruct what he might have been thinking at the time. “I was speaking off-the-cuff. It was just a mistake.” As evidence that it was not indicative of his beliefs, he noted that his projections of the law’s impact have always assumed that all eligible people would get subsides, even though, he said, he did not assume all states would choose to run their own marketplaces.
[Gruber:] But there was never any intention to literally withhold money, to withhold tax credits, from the states that didn’t take that step. That’s clear in the intent of the law and if you talk to anybody who worked on the law. My subsequent statement was just a speak-o—you know, like a typo.
There are few people who worked as closely with Obama administration and Congress as I did, and at no point was it ever even implied that there’d be differential tax credits based on whether the states set up their own exchange. And that was the basis of all the modeling I did, and that was the basis of any sensible analysis of this law that’s been done by any expert, left and right.
I didn’t assume every state would set up its own exchanges but I assumed that subsidies would be available in every state. It was never contemplated by anybody who modeled or worked on this law that availability of subsides would be conditional of who ran the exchanges.
So much for that. Gruber seems to gave been suggesting that states that didn’t set up their own exchanges might have their citizens temporarily denied the tax credits depending on the progress of the federal backstop, not that any such denial would be permanent.
But let’s assume for the sake of argument that Gruber, not only when asked to clarify his remarks but in his contemporaneous cost projections, was mistaken and the interpretation of some of Gruber’s extemporaneous remarks most favorable to the arguments of those who hate the ACA is correct. The argument is still roughly 99 parts water to 1 part tea. We still have essentially everyone responsible for drafting, voting on and/or implementing the legislation at the federal and state levels (not to mention the Sebelius conservative joint opinion) assuming that the federally established exchanges were intended to work, and a consultant making a bare assertion with no explanation that the federally established exchanges weren’t intended to work. It’s pretty obvious which is more significant, particularly since the next decent explanation for why Congress would bother to create a federal backstop that couldn’t actually function would be the first. Picking a single cherry out of a massive vat of nectarines is exceptionally weak evidence that we’re looking at a vat of cherries.
And, again, let’s return to Seigel’s first point. The challengers don’t just have to show that their interpretation is plausible; they have to show that it’s the only possible reasonable interpretation. Even if we assume that Gruber in a a single ambiguous YouTube video trumps everything Gruber has said before or since, a single ACA supporter agreeing with the silly interpretation of the law created after the fact by some of its most fanatical enemies is of little help in climbing Mount Chevron. Congress didn’t establish a federal backstop that was designed to fail; they established a federal backstop because they knew some states wouldn’t establish health care exchanges and they wanted to substantially reduce the number of people without health insurance. Unless you insist on projecting your own hostility to the federal government acting to expand coverage onto members of Congress who rejected it, this is entirely obvious.