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The Three Stages of ACA Trooferism

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I have a piece up at The Week on the shell game being played by the ACA troofers. The basic idea is that you shuffle between “Card says Moops!,” “the Moops invaded Spain,” and “¯\_(ツ)_/¯” theories quickly enough that it’s harder for people to explain why every individual argument is terrible:

As a sort of way station between the two arguments, then, Ponnuru proceeds to an argument we can label, “Looks like those clowns in Congress did it again. What a bunch of clowns.” In other words, various members of Congress had different intentions, many weren’t really paying careful attention — who can say what Congress was really trying to do? As Ponnuru writes, lawmakers are “generally not detail-oriented people.”

There is a grain of truth to this argument — Congress is a “they,” not an “it,” as social scientists say, and we should be careful in making broad generalizations. Nonetheless, everybody makes reasonable judgments about what Congress is trying to accomplish, not least because it would otherwise be impossible to practice law or interpret history. We can understand why the Wilmot Proviso, for example, broke down on sectional rather than partisan lines without claiming to know the precise subjective intentions of each and every member of Congress.

And in this case, the idea that we can’t reasonably infer what Congress was trying to do is absurd. The amicus brief written by Nicholas Bagley, Thomas Merrill, Gillian Metzger, and Abbe Gluck is particularly strong on this point. Federal backstops are not some mysterious new innovation of the ACA — they’re a bog standard part of cooperative federalism. They’re inserted in statutes when Congress wants to ensure that benefits of programs administered primarily by states will flow to citizens even if the states decline to participate.

Congress did not intend for the federal backstop to fail, and it was universally understood that the insurance exchanges could not work without tax credits and the individual mandate. There’s only a mystery here if you hate the ACA so much that you’ve become willfully blind to what it’s trying to accomplish and how it relates to previous statutes in the New Deal/Great Society tradition.

As such, it makes sense that the ACA’s opponents would develop an alternate history that can actually reconcile their reading of the statute with an explanation of Congress’ intentions. The Supreme Court is much less likely to strip insurance from millions of people based on what the architects of the suit initially identified as a “glitch,” than if it convinces itself that it’s upholding the will of Congress.

Ponnuru doesn’t go quite so far as to say that he’s “100 percent certain” about what the ACA’s drafters were setting out to accomplish, but he does argue that the Adler/Cannon interpretation makes sense. Denying subsidies on federally established exchanges, Ponnuru asserts, is “not at all absurd in principle.” After all, states that don’t comply with the requirements of Medicaid don’t get the money — why shouldn’t we think that the same principle of coercion is at work in the exchanges?

But the contrast with the ACA’s Medicaid expansion destroys Ponnuru’s argument rather than fortifying it…

Much more at the link.  I wrote it before the final Carvin brief came out, but he’s definitely using this particular version of the con.  His first brief was full-on “Moops-invaded-Spain” trooferism, but the latest one is much more “anything’s possible,” not repudiating his bad magic realism but pushing it much less aggressively.  The fiction about what Congress was trying to accomplish doesn’t really have to withstand any empirical, logical or theoretical scrutiny — a good thing, since it can’t.  It just needs to throw up enough of a “shape of the Earth — views differ” fog that 5 justices strongly predisposed to destroying the ACA can tell themselves the law permits it.  The scary thing is that I still think it had a good chance of working.

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