The New York Times is the latest to make an in-depth investigation into the claims in King v. Burwell, the Libertarian lawyers’ challenge to the Affordable Care Act aka “ObamaCare” health insurance subsidies provisions, and to dismiss the claims as a concocted fraud. Four Words That Imperil Health Care Law Were All a Mistake, Writers Now Say.
A couple of quick points. First, this is the type of drafting error that is routinely corrected by legislative bodies through “technical amendments” to correct statutory language. It would take a one page bill to correct “four words” that Congress could quite literally pass in a few hours if we had a responsible Congress. It is not something that one takes to court — all the way to the U.S. Supreme Court no less — spending millions of dollars on litigating a drafting error. This exposes the “evil motive and intent” of the Libertarian lawyers pursuing this case. The claim is not brought in good faith.
Second, the Libertarian lawyers’ radical theory of statutory construction, based upon their fabricated record of congressional intent in this case, would radically alter the long-established rules of statutory construction if accepted as a general principle by the U.S. Supreme Court. It would literally call into question thousands of federal court precedents based upon existing rules of statutory construction.
The Court could limit its holding to this one case, as it did in Bush v. Gore, but that would undermine the credibility of this Court even further in my view. It would expose the “Felonious Five” as politicians engaged in extra-constitutional legislating from the bench, something already far too self-evident in the decisions of the Roberts Court.
Steve Benen writes, A moment of GOP candor on ‘Obamacare’:
In the political debate surrounding the King v. Burwell case at the Supreme Court, there are effectively two competing factions: those who acknowledge that the litigation is hopelessly insane, and those who know the case is hopelessly insane but pretend otherwise for the sake of appearances.
Once in a while, even a congressional Republican is willing to stand in support of reality.
At issue in the case is whether half of a sentence, buried within the law and removed from context, should be used to tear down the American health care system and strip millions of families of their health security. The New York Times set out to determine how that half of a sentence wound up in the law, and reporter Robert Pear talked to “more than two dozen Democrats and Republicans involved in writing the law.” Not one of them endorsed the argument put forward by the plaintiffs.
“I don’t ever recall any distinction between federal and state exchanges in terms of the availability of subsidies,” said Olympia J. Snowe, a former Republican senator from Maine who helped write the Finance Committee version of the bill.
“It was never part of our conversations at any point,” said Ms. Snowe, who voted against the final version of the Senate bill. “Why would we have wanted to deny people subsidies? It was not their fault if their state did not set up an exchange.”
Right. As Charles Gaba has noted, this is precisely how every member of the House, every member of the Senate, every congressional staffer, every White House staffer, everyone at HHS, everyone at the IRS, everyone at Treasury, everyone at the Justice Department, everyone at the Congressional Budget Office, every journalist covering the debate, every governor, every state legislator, every insurance company, and every hospital interpreted the law.
Though Snowe is too polite to say so explicitly, she’s effectively acknowledged that the case her party is pushing to take coverage from millions of families is based entirely on a lie.
It’s not just Snowe, either.
The idea of denying subsidies to people who bought insurance through the federal exchange “was never discussed,” said Charles M. Clapton, a lawyer who worked on both committees for Senator Michael B. Enzi, Republican of Wyoming. Mr. Clapton said he had difficulty accepting the argument advanced by the plaintiffs because it was “so contrary to the intent” of those who had written the legislation.
Jon Chait, who today described the case as “almost literally insane,” added, “It is difficult to convey to people who don’t follow health care for a living just how preposterous the lawsuit against Obamacare has become.”
It really is challenging. We’re accustomed to a certain degree of nonsense driving so much of our contemporary debates, and I imagine for some observers, there may be an assumption that the “real” truth lies somewhere between what the left and right are arguing.
I simply lack the words to fully convey how wrong this assumption is in a case like this. Even proponents of the King case itself must realize that they’re pushing a con that’s so brazen, it’s genuinely insulting to anyone with the slightest grasp of reality.
Well, not so the Libertarian lawyer who helped to concoct this fraud upon the Court. Jonathan Adler, writing at the Washington Post’s Volokh Conspiracy blog where the Post gives the Libertarian lawyers pursuing this case free rein to spew nonsense about their case, attempts to respond to the New York Times article today. On the origins of ‘established by the State’ in the Affordable Care Act. Given the overwhelming weight of the evidence that has been amassed against the Libertarian lawyers pursuing this case, he is entirely unconvincing.
The Court really ought to impose sanctions against these lawyers and to refer them for bar disciplinary proceedings. I doubt that the Court will take any action (because it would necessarily implicate the four Justices who agreed to hear this case). And if the U.S. Supreme Court rules in favor of this fraud upon the Court? There are no ethical sanctions that can be imposed on the U.S. Supreme Court.