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“A child would know it, he’s right. You’re going to make something up, be sure it will help or keep your mouth closed.”

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Above: Michael Cannon (5)

ACA Troofers-in-Chief Adler and Cannon claim to have a letter showing that 11 House Democrats thought that tax credits would not be available on the federally established exchanges.  You may not be entirely surprised to find out that the letter does not say what they say it does:

While a different brief for the ACA’s opponents continues to beat the Gruber dead horse, he is mercifully absent from the Adler/Cannon brief. Instead, the lawsuit’s architects cite a letter sent by 11 Texas House Democrats, which they say constitutes evidence for the assertion that “[m]any House members disapproved of the Senate passed PPACA, some because they recognized it conditioned subsidies on states creating Exchanges.”

Adler and Cannon’s characterization of the letter is blatantly dishonest. It says absolutely nothing about subsidies being unavailable on federally established exchanges. The letter’s argument that under the Senate bill “millions of people will be left no better off than before Congress acted” — which Adler and Cannon quote — is preceded by a discussion of how some conservative states have cut or failed to expand benefits under Medicaid and CHIPRA.

In other words, the concern of the Texas Democrats is not that federally established exchanges would not provide subsidies to insurance purchasers. Rather, their concern is that if conservative states established exchanges they would do so badly, and hence make it impossible for some residents to obtain affordable insurance. Adler and Cannon stand the meaning of the letter on its head.

Tacitly recognizing that the argument they attribute to the House Democrats is not remotely supported by the text, Adler and Cannon attempt to conscript one of the country’s foremost health care reporters into their crusade, citing an NPR report by Julie Rovner to buttress their misreading of the letter’s meaning. But, again, nothing in Rovner’s story says that the Senate bill would not provide subsidies on federally established exchanges. I contacted Rovner by email, and she confirmed that “there was never any discussion about only state exchanges offering subsidies that I was party to. I never meant to imply it in my story.”

Wait — it gets even worse for Adler and Cannon. The letter not only fails to lend a shred of support for their argument, it also destroys another of their key claims. One of the many problems with their approach is that it nonsensically assumes that Congress established a federal backstop that was intended to fail. Responding to this obvious objection, Adler and Cannon have suggested that Congress “reasonably expected that states” would establish exchanges, which explains why they didn’t bother to provide the subsidies. The letter cited by Adler and Cannon in this brief, however, makes clear that this assumption is erroneous.  “A number of states opposed to health reform have already expressed an interest in obstruction,” the Texas Democrats correctly observe.

The federal backstop was not created by accident — it was in the bill because it was well understood that not every state would establish an exchange before the deadline, and because failing to create a workable federal exchange would provide strong incentives for conservative state governments to obstruct the ACA.

As things stand, then, the only evidence for the Moops-invaded-Spain theory is the comments of President, Speaker of the House, Senate Majority Leader, Secretary of State, Governor of all 50 states, and Seattle Seahawks offensive coordinator Jonathan Gruber.  (Note: offer void in 2010 or 2014.)

One footnote about this double own-goal is that I believe that for a long time Adler’s position was that evidence about the intent of House members was irrelevant because the ACA was a Senate bill. Apparently, this “principle” was applicable until he thought he found “evidence” that supported his interpretation of the statute. (This kind of thing is apparently more widespread than you’d prefer to think.) I’d hope that if I was going to make things up in a brief submitted to the Supreme Court I’d have a better cause than “kicking millions of people off their health insurance,” though.

Finally, let us turn things over to Daniel Davies:

Good ideas do not need lots of lies told about them in order to gain public acceptance.

…since there’s been some confusion on this on social media, I should clarify that I didn’t write the title. On the question of how the Supreme Court is likely to rule, I remain a doomsayer.

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