But if you think what Gruber said is some evidence about what the ACA means, you can’t ignore other, similar evidence. That’s cherry-picking. So go ask John McDonough, who was intimately involved in drafting the ACA and is as straight a shooter as there is: “There is not a scintilla of evidence that the Democratic lawmakers who designed the law intended to deny subsidies to any state, regardless of exchange status.” Or ask Senator Max Baucus’s chief health adviser, Liz Fowler. She says the same thing. Or ask Doug Elmendorf, the current CBO Director: “To the best of our recollection, the possibility that those subsidies would only be available in states that created their own exchanges did not arise during the discussions CBO staff had with a wide range of Congressional staff when the legislation was being considered.” Or ask Peter Orszag, then-OMB Director: “[A]s someone who was there, [there is] zero chance this was the intent (as opposed to typo/poor drafting).”
Or ask Jonathan Cohn or Ezra Klein, both of whom followed the deliberations over the ACA closely. Neither heard a whisper about any supposed threat. Or ask Abbe Gluck, a law professor at Yale who details how “a basic understanding of the ACA’s legislative process makes clear that Congress intended for the subsidies to be available on the federal exchanges.” Or ask Aaron, who wonders, if this threat was so clear, why TIE never mentioned it. “Do you think we would have ignored this? We wouldn’t have been concerned?”
Better still, ask the states, which were on the receiving end of the supposed threat. According to a report from the Georgetown University Health Policy Institute, there’s no contemporaneous evidence that the states feared that declining to set up an exchange might lead to a loss of tax credits. How can it be that Congress unambiguously threatened the states with the possible loss of tax credits if the states never understood that threat?
This argument is unanswerable.
Conservatives are fond of quoting Scalia’s quotation of Harold Leventhal, describing the judicial use of legislative history as “as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends.” (The problem with this argument isn’t so much that it’s wrong as that it applies to any source of evidence that judges might use to determine the meaning of an ambiguous statutory phrase, originalism and textualism most certainly included.) Any conservative who 1)opposes the use of legislative history on these grounds and 2)cites Gruber 2012 (but not Gruber 2010 or Gruber 2014!) as definitive evidence for the intent of the ACA should be responded to solely with hails of derisive laughter.
…Also: “The opponents of Obamacare have from the beginning found themselves driven by the logic of their position to make arguments that are increasingly morally repulsive.”
…And, yes, the Halbig argument also requires the assumption that Congress was emulating Alexi de Sadesky.