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ACA Journamalism [UPDATED]

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Patterico believes he has a smoking gun in re: my disputing his assertion that Congress did not believe that there would be a need for any federally established exchanges:

 

Seems convincing! Only if you look at the linked story, you’ll note that Pear is just making a bare assertion when he says that “Mr. Obama and lawmakers assumed that every state would set up its own exchange.” He doesn’t cite any source; he doesn’t include any quotes. The fact that the federal government was scrambling to set up all the necessary exchanges — reflected in the disastrous rollout — is good evidence that the Obama administration was excessively optimistic in its projections of how many states would set up functional exchanges. But it’s a long way from there to showing that Congress and Obama expected all 50 states — including those already well known to be hostile to the ACA in 2010 — to establish state exchanges, and the fact that Congress created a federal backstop certainly puts the burden of proof on Pear (and Patterico) in terms of their much stronger claim.   And on that, they simply don’t have the goods.  In addition, internal communications suggest that members of Congress were aware that the federal backstop may well be necessary.

Fundamentally, this is a minor point — even if we assumed arguendo that lawmakers were sure that every state would establish exchanges, Congress did establish a federal backstop. It’s nonsensical to assume that they didn’t wan’t the backstop to work, and it’s inconsistent with the other part of the statute that make it clear that federally-established exchanges count as exchanges “established by the State.” Even if the exceptionally implausible assertion that Obama and Congress expected every state to establish exchanges was true, it’s not relevant to the meaning of the statute. But the assertion remains implausible.

UPDATE: The flaws in Patterico’s “evidence” have been well documented in comments, but to summarize for those who don’t feel like wading in:

  • The comments by President Obama are worth very nearly nothing.  Public officials generally offer optimistic assessments of how laws will be implemented that may not reflect their private views, and more importantly it’s not terribly surprising that Obama would not say “each states shall or the federal government shall establish a state exchange on the state’s behalf” when selling the bill to an audience, particularly since this is a distinction without a difference to the consumer.
  • In terms of members of Congress — the more important potential source of intent — he has offered essentially nothing.  Comments offered during markup during one Senate committee — which didn’t deal with the federal exchanges in the House bill — are worth nothing.  The fact that funds were not appropriated to establish federal exchanges also doesn’t tell us much of anything, as the administration did find the money with no protest form Congress.
  • Do you know who else disputes Petterico’s risible theory?  Justices Scalia, Kennedy, Thomas, and Alito: “By contrast, because Congress thought that some States might decline federal funding for the operation of a “health benefit exchange,” Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State.” As even the Sebelius dissenters understood, “[d]ifficulty in attracting individuals outside of the exchange would in turn motivate insurers to enter exchanges, despite the exchanges’ onerous regulations.  That system of incentives collapses if the federal subsidies are invalidated. Without the federal subsidies, individuals would lose the main incentive to purchase insurance inside the exchanges, and some insurers may be unwilling to offer insurance inside of exchanges. With fewer buyers and even fewer sellers, the exchanges would not operate as Congress intended and may not operate at all.”  This is the only plausible inference from the statute; it was not controversial.  I’m very confident Drum still has his 10 bucks.
  • Nor is it true that the language of the statute, properly construed, does not provide subsidies on the federally established state exchanges.  I will have a separate post on this tomorrow, but in the meantime I would just read King v. Burwell, whose opinions both explain it very well.

…more here. Hey, if Patterico wants to call Scalia, Kennedy, Thomas, and Alito lawless hacks, who am I to argue?

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