Nice catch by Abbe Gluck:
It is no secret that the people bringing the challenge to the Obamacare subsidies in the Halbig and King cases—challenges now seeking review from both the full D.C. federal appellate bench and the U.S. Supreme Court after federal appellate courts in Virginia and D.C. came out in opposite ways last month—are some of the same people who brought the 2012 constitutional challenge to the Affordable Care Act before the high court (the same counsel, and one of the same plaintiffs).
What’s less known, however, is that in the 2012 constitutional case, these same challengers filed briefs describing Obamacare to the court in precisely the way they now say the statute cannot possibly be read.
The challengers have spent more than a year arguing that no reasonable reader of text could construe the statute in any way other than denying federal subsidies to insurance purchasers on exchanges operated by the federal government. But what about their statements from 2012—statements then echoed by Justices Scalia, Kennedy, Thomas and Alito in their joint dissent to the Supreme Court’s ruling in the constitutional challenge, NFIB v. Sebelius?
And, as Gluck says, it must be remembered here that the “but the card says Moops!” challenge to the ACA does not merely have to show that their alternative reading of the statute is plausible. They have to show that there is no other reasonable interpretation of the statute, or they lose. The argument that the statute could not possibly have meant what everyone on both sides of the political spectrum thought it meant in 2010 is so preposterous it’s profoundly embarrassing that even two federal judges bought it.
This litigation, admittedly, does seem to be based on a principle that has been around for nearly two decades; namely, Judge Costanza’s dictum that it’s not a lie if you believe it.