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Conservatives Are Already Planning for the Supreme Court to Nuke Obamacare Subsidies

David McNew/Getty Images

Washington Post reporter Greg Sargent’s forensic investigation into the origins of the disputed statutory text in Obamacare should have ended the political and historical “debate” over whether Congress intended to induce states to set up their own exchanges. He shows quite conclusively that the key draft bills that preceded the final Affordable Care Act—from the House of Representatives, the Senate Finance Committee, and the Senate Health Education Labor and Pensions Committee—all unequivocally contemplated that subsidies would be available everywhere, and that the disputed text is an accidental relic of merging the latter two.

But this is the closest I’ve seen any conservative journalist come to conceding the historical point:

And I think I know why.

Everyone else on the right, as near as I can tell, is holding the line and insisting on one revisionist history or another, all of which entail supposing that Democrats merged these three unequivocal bills into something that intentionally says the opposite. Which is convenient, because, as Douthat’s tweet implies, once you concede intent, the legal and political argument for invalidating subsidies all reduce to the same thing: Congress made an oops, and for that oops, five million people should lose their insurance.

As it happens, I don’t think conservatives have quite as clean a textual case as they assume. Multiple federal judges have held that the law unambiguously envisions subsidies in every state. One of them, James Spencer, is a Reagan appointee. “When statutory context is taken into account, Plaintiff’s position is revealed as implausible,” he wrote. “Courts have a duty to construe statutes as a whole.” He likewise rejected the plaintiff’s theory of intent. Multiple other federal judges hold that the text is ambiguous, but that the government’s interpretation is plausible and should be given deference. If you’re keeping score in this way, the government’s case is actually winning.

Law professor Nicholas Bagley has more on why conservatives are begging the question when they claim they want to uphold 'the law as written.'

But I keep harping on the political and historical revisionism, as opposed to the closer textual question, for a reason. Actually for several reasons.

As I’ve noted many times now, the historical claim that Congress intended to condition subsidies on states setting up their own exchanges allows conservatives to dodge accountability for the more niggling logic of their textual argument. It also allows them to ask judges to uphold the law as intended, rather than to effectively invalidate it based on an oops.

I’m not solely concerned with appearances, though. I’m concerned with what happens if five Supreme Court conservatives ignore the statutory context and invalidate the subsidies. A ruling for the challengers would immediately tee up a crucial debate over what to do next. And that debate must unfold in an intellectually honest fashion. “Should we fix a simple but consequential error?” rather than, “Should Democrats (not to mention voters) live with the unintended consequences of the scheme they devised?” Conservatives obviously have no interest in debating the former proposition. That’s part of the reason they’re holding so tightly to the fabricated notion that Democrats did this on purpose. Or at least to the idea that such an interpretation is plausible. Among other things, the point of suggesting that this is what the law’s authors intended is to rig the post-Halbig debate, so that Republicans don’t suffer any consequences for sitting on their hands as beneficiaries suffer over something so easily fixed.

But that should be a game for conservative activists, not journalists.