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Dr. Strangelove Explains Why the Obamacare Lawsuits Make No Sense

If you're going to make a threat, usually you tell somebody about it

Columbia Pictures

Most of the health policy wonks I know are baffled by these new legal challenges to Obamacare—the lawsuits that one federal court rejected last week but another one approved, and then got more attention thanks to some 2012 comments by one of the law’s outside architects. If you want to know why we are so puzzled, you should read the article that Sarah Kliff published in Vox over the weekend.

As Kliff explains, lots of issues related to health insurance coverage came up in 2009 and 2010, when Congress was writing, debating, and eventually voting for the legislation that became the Affordable Care Act. There were questions about who should be eligible for tax credits to buy coverage, for example, and how big those tax credits should be. But there was never any debate about the key issue that these lawsuits raise: whether to withhold subsidies from people living in states where officials had opted not to create their own insurance marketplaces. And there was never any debate about this because nobody on Capitol Hill or in the Administration ever suggested it was even a possibility. “I feel completely comfortable saying Congress meant for residents of all 50 states to have access to financial help,” Kliff writes. “It was never a question, during the five years I’ve spent writing about Obamacare, whether this would be the case.”

Kliff isn’t the only health care reporter who came away from the congressional debate with that impression. There’s also Julie Rovner, who is writing for Kaiser Health News but most people probably recognize from National Public Radio. If there’s a dean of health care reporting these days, it’s Rovner. She has quite literally written the book on the subject. “I also had 100s of conversations with people writing the bill in 2009 and 2010,” Rovner wrote on her Facebook page, “and I never had anyone mention the idea that subsidies would only be available in state exchanges.” She posted a similar comment to Twitter

If you asked other reporters who were covering the health care debate in 2009 and 2010 the same question, I suspect they’d say the same thing. I certainly have. And, no, it’s not because each one of us read the bill, line by line, although some of us did. It’s because we were in close contact with the analysts and lobbyists and staffers who were inspecting the emerging legislation in such detail—and who had the expertise to understand what each word and punctuation mark actually meant. If one of these experts had picked up even a whiff that Congress would make subsidies conditional on states running their own exchanges, they would have raised a huge fuss.

The absence of such attention is damning in another respect. Remember, the theory behind this lawsuit is that Obamacare’s architects were basically trying to threaten the states—build an exchange, the feds would tell state officials, or your citizens won’t get money to help them buy insurance. But as Nicholas Bagley, a law professor at the University of Michigan pointed out at The Incidental Economist, “For threats to work, they have to be communicated.”

Bagley invoked an analogy from the Godfather to make his point, but the better comparison may be one that Michael Hiltzik used in the Los Angeles Times. (Update: Mike Konczal of Roosevelt Institute also invoked the example, last week.) It’s from the Cold War comedy Dr. Strangelove—the scene in which an incredulous Strangelove, the German scientist working for the Americans, asks the Soviet ambassador why his country built a doomsday device without publicizing it. “But the whole point of the Doomsday Machine is lost if you keep it a secret! Why didn't you tell the world, eh?"

There’s no question that congressional Democrats were sloppy when they wrote the health care law. But it’s one thing to suggest they did a lousy job of translating policy into legislative language, quite another to suggest they made one of the law’s core features dependent upon a threat that, somehow, they forgot to make. It simply makes no sense.

Jonathan Cohn

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