The supreme Court might have already held its vote on King v. Burwell, the case challenging federal tax credits to people buying Obamacare health insurance on the federal exchange because they live in states which did not create their own exchanges. The challengers posit that Congress intended it this way—that they wrote the law to explicitly exclude these millions of people from subsidies as incentive to states to create their own exchanges. The main problem for challengers is that pretty much nothing in the record of the law—from the very first meetings and hearings all the way through the rule-making process after it passed—confirms that interpretation.
Here’s even more evidence—or more accurately, complete lack of evidence—to show that theKing lawyers’ case is constructed out of basically nothing.
Over the past year, The huffington post has filed public record requests with multiple states and the Department of Health and Human Services to see if there was ever any discussion among federal and state officials about this very topic.
HuffPost examined results from within a specific time frame—after the passage of Obamacare and before August 2011, when the IRS issued its public ruling that subsidies should be universal—and focused on states that chose not to set up an exchange. In addition, HuffPost looked at more than 50,000 previously released emails from the governor’s office in Oklahoma.
Among all the emails, letters and press releases reviewed, there was not a single instance of an administration official warning that if states decided not to run their own health care exchanges, their citizens would not be eligible for the tax credit subsidies. Nor was there a single instance of a state official recognizing or anticipating such consequences.
Only when the issue began percolating on conservative news outlets, and had life breathed into it from conservative think tanks, did officials start to notice.
Oklahoma, one of just a handful of states that filed an amicus brief in support of the King plaintiffs, asserting that they knew all along they would be penalized for not creating an exchange. In the 50,000 emails from Gov. Mary Fallin’s office, there was not a single hint that this was the understanding of state officials and the issue wasn’t even mentioned until Nov. 16, 2011, when the wall street Journalpublished an op-ed by the legal minds behind this challenge posing the theory. Throughout 2011 and 2012, Fallon was actually advocating that the state set up an exchange. That’s until her attorney general, Scott Pruitt, wrote to her saying that he was going to sue the federal government, and if she pursued the state-based exchange and got it, “I will have to dismiss the lawsuit.”
Suing the Obama administration was far more important to Fallon and Pruitt than making sure their constituents had affordable health insurance. That’s not surprising anymore, really. It’s just how Republicans work.
“No. No. No. That was never, never brought up,” [state Sen. Jim McClendon (R)] McClendon said in an interview with The Huffington Post last month. “I was unaware of that stipulation in the Affordable Care Act, and I would almost have to guess that anybody involved in this process was not aware of it. I was a little surprised when it came up eventually. Nope. I was the chairman of the commission and I was totally unaware of that.”
In other words, according to McClendon, at no point during the commission’s five meetings between September and November 2011, nor during a legislative debate that stretched into the spring of 2012, did anyone conceive of the most significant consequence that could result from Alabama opting for a federally run health insurance marketplace. The commission ended up unanimously recommending a state-run exchange.
By the time that recommendation was made, Republican opposition to the law and anything at all having to do with it had solidified, and even Bentley flip-flopped. But in making that decision, there was no “realization” that some 165,000 people would be left out in the cold, unable to afford insurance without the subsidies. In fact, three more members of the commission who talked to HuffPost completely deny that possibility ever occurring to them. Two members of the commission, though, say they totally knew about it, one of whom is a former representative who was forced to resign after pleading guilty to corruption charges and the other an insurance industry representative who says he has the notes to prove it, but refuses to make those notes available.
This understanding by the states is critical to the case and to the justices’ decision. They’re not deciding whether the law is constitutional, but what Congress intended in this statute. Critical to that is whether Congress made their intent clear to the states—that’s the key to Justice Anthony Kennedy’s major concern expressed in the oral arguments. Was the federal government being unconstitutionally coercive in the law by putting this burden on the states? And would they be so sneaky about doing so?
Most reasonable people would say “no.” We’ll see if the majority of the supreme court is made up of reasonable people in June, when their decision is handed down.
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