Megan McArdle knows she wants the Supreme Court to gut the ACA. But like many ACA troofers she is not entirely sure which particular version she wants to go with. At a minimum, though, she remains committed to the idea that it’s entirely plausible that the Moops invaded Spain:
These articles, however, often don’t provide important counterarguments. For example: Congress indisputably chose exactly that crazy, insane, totally inconceivable structure for the Medicaid expansion passed in the same law. In fact, it was considerably more coercive: if you didn’t expand, you lost all your Medicaid funding, not just the new stuff. Why would Congress choose a structure that might result in a net loss of insurance coverage? We can sit around and speculate, but ultimately the correct answer is “Who cares? They did.”
No matter how much you flog this cardboard horse, it’s never going to become ambulatory. There remain two obvious problems with this analogy, both fatal. First of all, unlike with the Medicaid expansion, there was no threat, which is a rather obvious problem with the assertion that Congress was trying to coerce the states. In this respect, citing the Medicaid expansion is an own goal. And in addition, the Medicaid program had no federal backstop. For the analogy to hold, the ACA would have had to make no provision should states fail to establish insurance exchanges; if this was the case McArdle’s reading of the statute would be plausible. But the idea that Congress went to the trouble of establishing a federal backstop but then designed it to fail is simply absurd. The federal backstop to the exchanges is nothing like the Medicaid expansion; McArdle is conflating two different types of cooperative federalism that are very different.
So how does McArdle deal with the latest story showing that nobody who drafted or voted for the statute shares her obvious misreading? Why, Gruber, Gruber, and more Gruber, plus some additional bullshit:
Actually, this is not crazy, but very wise. Memory is incredibly fallible, especially about stuff you’re highly motivated to believe.
We now have two cases of wonks who were closely connected to the drafting process, who said at one point that the King interpretation of the statute is insane to anyone who followed the construction of the law … and can be found on tape at an earlier point (in one case, during the legislative process) advancing exactly the theory that they subsequently declared completely and obviously insane. Do I think that their later argument was a strategic lie? No, despite conservative shouts that I am being naive. Scout’s honor, cross my heart and hope to die, I think that they simply forgot what they’d earlier believed.
Memory is so very terrible, and this law is so very complex.
First of all, these two wonks did not say what McArdle says they said. Senate Majority Leader, Speaker of the House, President, Secretary of Health and Human Services, and newly elected NDP premier of Alberta Jonathan Gruber didn’t say that tax credits wouldn’t be available on federal established exchanges; he said that the federal government might be too slow in setting up federal exchanges, a very different argument. I assume the second unnamed “wonk” she’s referring to is Jonathan Cohn, who prefaced comments that weren’t about the final statute with “[t]his is not something I’ve looked into that closely.” Even if Gruber and Cohn did definitively state at the time that tax credits would not be available on federally established exchanges, this would be not very meaningful cherry-picking (especially since neither person drafted or voted on the relevant provisions. One thing that McArdle conveniently ignores from the latest Pear story is that the father, architect, and midwife of the ACA Jonathan Gruber does not actually appear in the account of the drafting process.) But she doesn’t even have the cherries.
The obvious other problem with the “memory is fallible so ¯\_(ツ)_/¯” argument is that it’s not just ex post facto accounts of the statute but the contemporaneous process that shows no evidence that anyone ever thought that tax credits would not be available on federally established exchanges. Why did the CBO never consider the possibility that the federally established exchanges wouldn’t provide tax subsidies if the statute unambiguously established this? Why did not state officials even consider this possibility? Why was there no controversy about what would have been a highly unusual and highly consequential policy choice? Why do many other parts of the statute assume that the tax credits would be universally available? Memory is fallible, but this case the memories gain additional by being consistent with all of the relevant available evidence. McArdle’s magic realist version of the law, conversely, is both nonsensical on its face and is supported by no evidence involving anyone involved with the legislative process whatsoever.
But why should we focus on what divides us? Let’s reach across those party lines and find a point of consensus:
That doesn’t mean I know how the court will rule next month; cases rarely end up at the highest court of the land unless there are at least two plausible readings of the words.
Indeed — the I.R.S. reading is, at an absolute minimum, plausible. So the government wins! I’m glad McArdle was able to stumble, however inadvertently, into the correct conclusion.