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ACA Trooferism: The Reviews Continue


Marty Lederman’s post is so brilliant I hesitate to excerpt, but as a teaser:

As I explain below, the challengers are mistaken to assume that absurdity is the only ground the Court has recognized as a basis for deviating from a text’s plain meaning. For what it’s worth, however, the challengers should lose even under that test, because their reading is “objectively absurd.” In particular, if the challengers were correct that tax credits are unavailable for insurance purchased on a federally established Exchange, Congress’s directive to the Secretary of HHS to establish and operate such federal Exchanges in States that have failed to do so would make no sense at all, as the Solicitor General explains at pages 24 and 38-39 of his brief.

Subsection 1321 (c)(1) of the Act provides that if a State elects not to set up an Exchange, or if a State does try to set up an Exchange but misses the deadline, or fails to satisfy all the relevant requirements for an Exchange, the HHS Secretary “shall . . . establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.” The challengers concede (opening brief at 22) that this provision is designed to require HHS to establish the “same Exchange” that would exist if the State established the Exchange for itself, and that “[t]he HHS Exchange should operate just like the Exchange the state would otherwise have established.”

If tax credits were unavailable with respect to insurance policies purchased on an HHS Exchange, however, that Exchange would not operate anything like its State-run counterpart. The HHS-facilitated Exchanges would collapse as insurers dropped out. It would be absurd, indeed, for Congress to have insisted that HHS to set up such dysfunctional Exchanges, without the tax credits that are crucial to their operation. As the SG puts it (p.24), “[a]n Exchange without credits would be a rump Exchange bearing little resemblance to its state-run counterpart—if it could operate at all.” This wouldn’t merely be Hamlet without the Prince; it would be Hamlet without the Danish monarchy . . . more like Rosencrantz and Guildenstern Are Dead.

Stephen Brill brings the shoe leather:

I’ve now gone back and looked at my notes and can report that I interviewed 21 congressional staffers and members last year in my effort to reconstruct the day-by-day narrative of how Obamacare happened. None ever mentioned the possibility that the subsidies did not apply to the states in the federal exchange.

On the contrary, everything they told me — and all of the contemporaneous emails and other internal documents I reviewed — assumed that the federal exchange would simply be a substitute for a state exchange if a state decided not to launch its own, and that the same rules would apply. That is consistent with the instructions Democratic and Republican staff members gave to the Congressional Budget Office when they asked it to “score” (estimate the cost of) various drafts of the law, including the final version.

Perhaps most telling was Iowa Republican Senator Charles Grassley’s early take on the suit. Grassley is the Republican most intimately involved with the drafting of the law. Before finally siding with his GOP colleagues and refusing to vote for the bill, he and his staff worked closely with Democrats in the Senate, negotiating provisions and language and even adding several important provisions of their own that made it into the law.

Last June — again, as an afterthought because the suit seemed so unlikely to be taken seriously by any court — I asked Grassley about it as he walked me through the Senate dining room following an interview. At first he did not even know what I was talking about. When I explained the suit to him and asked if it was possible that the law intended to bar subsidies for people on the federal exchange, he still seemed not to understand and said that it made no sense. Put simply, he seemed incredulous. If congressional intent is the issue, someone should have taken Grassley’s deposition.

Nicholas Bagley on why the horrible consequences of the Court siding with the troofers are legally relevant:

Tough luck, say the plaintiffs: The harsh consequences of a ruling in their favor should be irrelevant to the justices, whose only job is to interpret the statutory text. In any event, the plaintiffs contend, those harsh consequences are perfectly consistent with what Congress meant the law to accomplish.

But the plaintiffs are mistaken. It’s not irrelevant that a ruling in their favor would inflict such damage. To the contrary, that fact helps us correctly interpret the statute’s text. Indeed, it shows that the plaintiffs’ understanding of that text is wrong.

That an argument this embarrassing and with such disastrous consequences has gotten this far tells you all you need to know about 21st century American politics.

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