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Today In ACA Troofer Hackery

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When you’re trying to sell one of the most risible conspiracy theories in the known universe, one almost remarkably devoid of evidence, you’re going to produce a lot of hackery.  For example, say your theory rests largely on an assertion that Ben Nelson demanded that subsidies be only made available on state exchanges (as opposed to Nelson’s actual belief that there should not be a single federal exchange.)  Well, I happen to have Ben Nelson right here and:

But Nelson, who announced his retirement in 2011, speaks for himself in a brief filed by Democratic congressional leaders and others.

“I always believed that tax credits should be available in all 50 states regardless of who built the exchange, and the final law also reflects that belief as well,” Nelson wrote in a letter to Sen. Bob Casey (D-Pa.) who sought Nelson’s view.

The saucer people Moops got to him too! WE’RE THROUGH THE LOOKING GLASS PEOPLE!

Meanwhile, a reader found this entertaining bit of diversion from Jonathan Adler, responding to the fact that the four Selbelius dissenters rejected his reading of the statute:

Jonathan Adler, an architect of the legal challenge in King, doubted that the administration’s citation of the 2012 dissent would impact the case.

“It’s more of a cute debater’s point than a substantive legal point,” he said in an email. “It tells you something about the strength of their case.”

Why, yes it does, although not in the way he means the phrase. Needless to say, Adler doesn’t think that this kind of evidence is merely a “cute debater’s point.” Section V of the Adler/Cannon brief cites a letter signed by 11 Texas House Democrats advocating for a single national exchange. The obvious problem with citing it as evidence that the Moops invaded Spain is that nothing in the letter says that subsidies wouldn’t be available on federally-established exchanges; indeed, the thrust of the letter is a worry that states will set up inferior exchanges, not that federally-established exchanges would fail. (Inadvertently revealing that the letter itself doesn’t actually support their interpretation, they combine it with the erroneous inferences made by an NPR report about the letter.) And of course, as the government’s brief observes (fn 19), the petitioner’s brief “rel[ies] heavily” on the 2012 but not 2010 or 2014 comments of President, Speaker of the House, Senate Majority Leader, Secretary of State, Governor of all 50 states, and discredited NFL commissioner Jonathan Gruber, whose comments have also been cited in arguments by Cannon.

So it’s not that Adler and Cannon think that how public officials contemporaneously interpreted the statute is irrelevant. There’s just almost no evidence of legislative intent that supports their fantastical theory. If the Sebelius dissenters agreed with them, they’d certainly find it relevant and not a mere “debating point.”

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