Orrin Hatch argued in a Wall Street Journal op-ed in 2010 that the ACA’s requirement that states set up exchanges “is not a condition for receiving federal funds.” Ian Millhiser explains the significance of this:
Nevertheless, Hatch does make an important claim about the law in his WSJ op-ed. A state’s choice to set up and operate its own exchange “is not a condition for receiving federal funds.” That is the Obama Administration’s position in King v. Burwell. It is also the correct position.
As a legal matter, Hatch’s statement has less significance than similar statements by Republican Governors Scott Walker (R-WI), Bob McDonnell (R-VA) and Dave Heineman (R-NE), all of whom have also contradicted the central claim underlying the King litigation. The Supreme Court’s decision in Arlington Central School District v. Murphy gives special significance to statements by state officials who are in the process of deciding whether to take a particular action that allegedly triggers the payment of federal funds.
Nevertheless, Hatch’s statement is significant for two reasons. The first is that he made it in the context of an op-ed whose entire purpose was to lay out the case for why Obamacare should be destroyed by the courts. And yet, even when he was engaged in this very specific task, he didn’t just fail to notice what he now claims — that the law itself gives each state the power to destroy much of the law within their own borders — he directly contracted his own argument in his King brief.
The second reason is that, under the Supreme Court’s decision in Chevron v. Natural Resources Defense Council, courts owe extraordinary deference to federal agencies’ construction of a statute unless that construction defies the law’s unambiguous text. It is hard to believe that the law unambiguously denies tax credits to people in many states when four staunch enemies of the law — Hatch, Walker, McDonnell and Heineman — all shared Barack Obama’s interpretation of Obamacare.
Which makes the fact that a minimum of three justices are going to accept the troofer reading — one they themselves rejected, just like Hatch! — while pretending that Chevron is being applied all the more abominable. In fairness, Ian doesn’t deal with the fact that there are only three people properly authorized to explain what this law means: Jon Adler and Michael Cannon after the previous ad hoc theories deployed in their fanatical campaign to get the ACA vetoed by the judiciary failed, and President, Speaker of the House, Senate Majority Leader, Secretary of State, Governor of all 50 states, and Food and Beverage Director of the Tangiers casino Jonathan Gruber. (Note: Gruber’s interpretations valid only in 2012, not 2010 or 2014.)
…and it’s not just Hatch, it’s essentially every Republican member of Congress:
In a perverse way, the absurdity of the challengers’ argument is it’s greatest strength. Because the scheme they insist Congress intentionally created was so far from Congress’ mind, it’s hard to find contemporaneous evidence that Congress absolutely didn’t mean to condition these subsidies. In much the same way, we can’t be sure that Congress didn’t mean to denominate those subsidies in Canadian dollars. A $ isn’t necessarily a $ after all.
But this familiar line of defense crumbles here. It is facially plausible—though incorrect—to posit that CBO believed subsidies would be available everywhere because it simply assumed every state would set up an exchange. But that assumption didn’t hold in April 2011. Something else must explain CBO’s 1099-repeal score, and the Republican votes that followed it. What we have in the form of this bill is clear evidence that everyone who voted for it (including every single Republican, save the two GOP congressmen and one GOP senator who weren’t present) understood the Affordable Care Act to provide subsidies everywhere.