Today is the day. In preparation, hackwork pieces are appearing all over Big Media, seemingly all from the pro-Obama side. (Shocking and unexpected!) Michael Cannon had a little fun with the fact-challenged offering from Sarah Kliff at Vox, and notes no fewer than 18 problems with it. I won’t go over all 18, but let’s whet your appetite with a couple of them:
3. “As anyone who covered it at the time…remembers, the law’s passage was an absolute mess,” Kliff reports, and the “messy language and loose ends that legislators expected to get ironed out simply became part of the law.”
Nevertheless, Kliff reports that all congressional staff involved with the drafting of the Patient Protection and Affordable Care Act swear they meant to authorize the disputed taxes and subsidies in states with federal Exchanges. She also reports that all journalists who reported on the drafting process swear that every time the topic arose, Democratic staffers always said these provisions would be authorized in states with federal Exchanges. (Well, except these members of Congress and this journalist.)
Kliff neglects to mention that there is absolutely zero contemporaneous evidence of any kind that supports those recollections. Or that contemporaneous discussions of that issue, like this one by Jonathan Cohn, show (A) that even the sharpest journalists weren’t paying attention to this issue, and (B) to the extent they did, their impressions were consistent with the subsidies being conditional.
Thus, the only contemporaneous evidence that speaks directly to the question presented to the Court is the explicit statutory text clearly limiting subsidies to Exchanges “established by the State.” That’s probably something Kliff should have mentioned. You know, so readers can decide whether to take the “if you like your health plan, you can keep it” crowd at their word.
It’s worth noting, I think, that the link to “this journalist” goes to an NPR piece that says:
Indeed, on Monday a group of Democratic House members from Texas wrote to President Obama urging that the House approach be preserved in the final bill. They worry that because leaders in their state oppose the health bill, they won’t bother to create an exchange, leaving uninsured state residents with no way to benefit from the new law.
Absolutely nobody ever said that!!!! Oh, except that guy.
Oh, and except Jonathan Gruber . . . multiple times. But, you see, Kliff advances the compelling “we should all believe Jonathan Gruber” argument, which Cannon refutes easily:
16. Kliff writes, “[Jonathan] Gruber has disavowed the remarks [in which he told audiences that the law conditions subsidies on states establishing Exchanges], saying that he spoke ‘off the cuff’ and made a mistake. There’s reason to believe him: Gruber spoke regularly to dozens of reporters during this period and never mentioned this idea to any of them.”
Kliff should have mentioned there is also reason not to believe Gruber’s disavowals. Gruber made that claim multiple times, and his attempts to explain those comments away reveal, um, inconsistencies.
Kliff also should have mentioned that at least one of his “off the cuff” remarks was anything but. As our pal Morgen said at the time:
Funny thing about this other "off the cuff" Gruber comment, it was part of his prepared remarks. Weird.
— Morgen (@morgenr) July 25, 2014
Cannon’s piece is worth reading in full. But as we prepare for today’s argument, I would like to point out one major logical flaw that runs through so many of the pro-Obama arguments: the argument that “we are right, and because we’re right, that means were right.” So many of their arguments simply assume the thing they are trying to prove.
For example, there is the “Moops” argument advanced by Jonathan Chait, which references the Seinfeld episode in which George tells Bubble Boy that he got a trivia question wrong because the card says the “Moops” invaded Spain in the 8th Century. This argument is advanced to show that a drafting error is just a drafting error. Putting side (as Cannon shows) the fact that the government is not arguing that the language was a drafting error, the argument still assumes what it claims to prove. It is a fact that the Moors invaded Spain, goes the argument, and it is a fact that the language was drafted to give subsidies to federally established exchanges. Therefore, you must read the language as giving subsidies to federally established exchanges.
See how easy arguments are when you assume your conclusion to be true?
Likewise, the pro-Obama folks argue that, as doofus Scott Lemieux puts it, “the Cannon-Adler interpretation may be unconstitutional, since states have to be given fair notice before a federal benefit is taken away.” Of course, for it to be “taken away” it had to be granted to begin with. But if you just assume the subsidies were there, then you can’t take them away without telling the states clearly. Once again, the argument assumes the very thing the pro-Obama faction is trying to prove: that Congress granted the subsidies to begin with.
The fact is, even if everybody assumed that people would get subsidies, that appears to have been based on another poor assumption: that all states would establish exchanges.
Somewhere Aristotle is spinning in his grave, trying to figure out how his principles of logic have been so badly distorted.
I’ll try to offer some commentary on the oral argument this evening.