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The Latest Obamacare Challenge Has Entered 'X-Files' Territory


The idea that “[t]he plain text of the ACA reflects a specific choice by Congress” to limit Obamacare subsidies to states that set up their own exchanges has conveniently evolved into an article of faith on the right.

It’s not sufficient—at least for political purposes, and probably for legal purposes—for conservatives hoping to gut Obamacare to argue that “the plain text of the ACA reflects poor statutory draftsmanship, which we think accidentally places a huge condition on insurance subsidies.” So they have concocted a theory of intent, wherein a few in-the-know Democrats drafted the law this way on purpose, and confusion reigned until a handful of conservative lawyers swooped in to inform the world.

This theory would be somewhat plausible if it didn’t need to account for the fact that none of the relevant actors picked up on it before they did. But over the past several days, evidence has mounted that literally nobody with control over state or federal policy interpreted the ACA as a bludgeon against the states until anti-government activists prevailed upon them that Obamacare was designed this way on purpose.

In light of that evidence, the legal challenge to the Affordable Care Act in King v. Burwell now rests on an argument that has crossed the fuzzy line dividing revisionist history from X-Files-style conspiracy theory.

Cannon—a King architect—was responding to this article, which resurfaced an episode from early 2011, in which Republicans voted on, and passed legislation amending the ACA, premised on the idea that subsidies were available on both federal and state exchanges. In so doing, Congress affirmed its understanding that the ACA meant for subsidies to flow everywhere.

But it wasn’t just Republicans in Congress who were “clueless,” or “most Democrats” or the Congressional Budget Office.

As Greg Sargent has documented at the Washington Post, and as officials across the country have attested, state insurance commissioners did not read the ACA this way either, and were not apprised by the federal government of the scheme challengers claim Congress created on purpose.

Conservatives have leaned heavily on the argument that former Democratic Senator Ben Nelson, who insisted on a cooperative federalism model favoring state over federal exchanges, was responsible for this “specific choice.” But he says that’s preposterous.

The conspiracy of cluelessness widens to include four conservative Supreme Court justices. As the government notes in its brief, they read the ACA and concluded both that the existence of a federal backstop indicates “Congress thought that some States might decline…to participate in the operation of an exchange,” and that exchanges would not work as intended if subsidies were not available universally.

Prior to 2011, the entire anti-Obamacare industry, including everyone from well-heeled advocates to anonymous tweeters beseeching everyone to #ReadTheBill, had somehow missed it too.

Four years later, two conservative D.C. circuit court judges bought the argument, the Supreme Court took the case, and suddenly everybody had an epiphany. Last month, Mike Konczal of the Roosevelt Institute did an excellent job detailing how the King argument evolved from an ill-formed sense among a handful of conservative thinkers that the ACA might contain a glitch, to a strong universal conviction that the “glitch” was actually a feature of the law, not a bug.

That’s where we are today. These conservatives have come a very long way. But there’s something conspicuously missing from this widely shared conviction: any evidence of the intent on which their entire argument rests. The truth is out there.