However the Halbig v. Burwell case on Obamacare subsidies turns out legally, the public debate should be a lesson in humility.
At issue in the case is whether language in the text of the law directing subsidies to individuals who sign up for insurance on an exchange “established by a state” makes individuals living in the 36 states with a federal exchange ineligible for the subsidies.
Liberal critics of this legal theory have portrayed it as absurd, ridiculous, nutty, stupid, and even criminal. Recently, I’ve been likened to the health policy equivalent of a World Trade Center attack conspiracy theorist merely for sympathetically reporting the legal case of the challengers.
Those trying to ridicule the challengers, who received a favorable ruling before the U.S. Court of Appeals for the District of Colombia Circuit and an adverse ruling before the Fourth Circuit in July, argue that it’s simply inconceivable that Democrats who were aiming to expand insurance would have prevented subsidies from flowing to federal exchanges as an inducement for states to set up their own.
So, therefore, anybody suggesting otherwise is either a moron or a liar, or some combination of the two.
Josh Barro, who writes for the New York Times and contributes to MSNBC, has risen to prominence in no small part due to his merciless mocking of what he views as conservative dishonesty and stupidity. He recently wrote on Twitter, “The bizarreness of the ‘Halbig was intentional design’ theory is that Obamacare proponents never wanted ‘hammers’ that lead to less coverage.”
Oh really? How about Medicaid? The popular misconception is that the U.S. Supreme Court, in a 2012 decision, gave states the ability to opt out of expanding Medicaid through Obamacare. In reality, the justices merely made it less costly for states to opt out.
As originally written, the law would have meant that any state that chose not to expand the program through Obamacare would have lost all its Medicaid funding. In 2012, the federal government sent $239 billion in Medicaid money to the states and in 2010, the year Obamacare was passed, the program had over 66 million enrollees.
The Supreme Court actually ruled that this was too powerful of a hammer and thus crossed over into unconstitutional coercion. Under the ruling, states gained the ability to refuse to expand Medicaid while keeping their pre-existing federal money. But they still don’t get access to the newly available money through Obamacare unless they expand.
As ridiculous as liberals claim it is that subsidies would be limited to state exchanges, there’s a growing number of examples of their own experts suggesting just that.
Last week, multiple videos emerged of Obamacare architect and Massachusetts Institute of Technology health economist Jonathan Gruber, the go-to expert for liberals on the law, warning in early 2012 that states that didn’t set up exchanges would be denying their residents federal health care money.
And on Wednesday, American Commitment President Phil Kerpen released audio of the New Republic’s Jonathan Cohn – arguably the most knowledgeable and prolific liberal health care journalist — saying something similar in January 2010, after the bill passed the Senate, but before it became law. Cohn has since posted a response.
Now, I don’t want to pick on Cohn. And on this point, I’ll admit to bias. Cohn is as nice of a person as you’ll ever meet in journalism and his writing has been instrumental in building my own understanding of liberal health care policy.
But I think the Gruber and Cohn revelations should mark a turning point in discussions on Halbig. Skeptics of the legal challenge should show a bit more humility and debate the issue like adults, instead of resorting to name-calling and accusations of dishonesty and stupidity in an effort to delegitimize the opposition.
There is plenty of room for a reasonable disagreement about the significance of the phrase “established by a state.” There’s no need to resort to juvenile attacks and act as if people are being completely insane for placing weight on the actual text of a law in a legal dispute over statutory interpretation.