The mystery of the misunderstood Obamacare provision: Another take on the Halbig imbroglio

August 7, 2014

By Matthew E. Milliken
MEMwrites.wordpress.com
Aug. 7, 2014

Feature or bug? That’s a crucial debate being contested as a result of the Halbig lawsuit, which is part of the right wing’s War on Obamacare.

Liberal commentators such as Brian Beutler argue that the Patient Protection and Affordable Care Act provision that’s at the heart of the Halbig tussle represents a drafting error, not the intent of the law’s architects. To say otherwise is to dismiss as irrelevant the vast majority of the reportage and analysis that took place as the massive health-care reform bill was being crafted and implemented.

In fact, to adopt the now-popular conservative argument that Obamacare must be have been precisely designed to function exactly and only as it is written is to call into question the integrity of virtually everyone who discussed and wrote about the law as it was crafted, passed and initially launched.

After all, over that period, few if any people mentioned the supposed fact that Obamacare’s drafters intended to bar people who purchased health insurance through online marketplaces or exchanges that were run by the federal government. And the current conservative line is that the provision is a major feature, not a bug, in the health-care reform initiative.

As written, conservatives now declare, the law bars people in the 36 states with federally run exchanges from applying tax credits toward the purchase of health insurance plans offered by private insurance companies. Those credits, or subsidies, in many cases make health insurance affordable. If the Halbig plaintiffs and their allies win out (which is far from certain, as there’s plenty more litigating to be done), it would jeopardize subsidies for roughly 7 million Americans. Many of those people could lose their insurance as a result.

I want to ask a simple question: If the statutory interpretation cited by conservatives was so obvious, why wasn’t it cited by opponents of the law in the early phases of Obamacare implementation?

The answer surely can’t be that conservatives were afraid they’d be caught trying to sabotage Obamacare, or trying to scuttle a chance at health insurance for millions of Americans. Republicans have proudly boasted of their opposition to the law, and for years GOP legislators and governors have backed up those words by forcing the federal government to set up online insurance marketplaces and by blocking Medicaid expansion.

Some conservative politicians have gone beyond that, by shooting copies of the law, or by passing rules and regulations designed to undercut the Affordable Care Act. “Let me tell you what we’re doing” about ObamaCare, Georgia’s insurance commissioner declaimed before a crowd of fellow Republicans a year ago. “Everything in our power to be an obstructionist.” (He was bragging about creating a licensing process for navigators, who guide customers through the task of purchasing insurance — precisely the kind of overregulation, in other words, that calls into question the purported conservative commitment to smaller government.)

Oh, and let’s not overlook the infamous 21-hour-long would-be filibuster enacted by U.S. Sen. Ted Cruz (R-Texas) in September of last year. That was the talkathon that set the stage for a 16-day-long partial federal government shutdown in October — one which reportedly cost taxpayers $2 billion, and which may have taken an astonishing $24 billion out of the economy, according to a Standard & Poor’s analysis.

Conservative commentators have issued, if anything, even more heated rhetoric than political candidates and elected officials. Right-wing pundits have called Obamacare socialisma Trojan horse meant to usher in the kind of single-payer health care that (horror of horrors!) exists in most other industrialized nations, and “the worst thing that has happened in this nation since slavery.”

But conservative organizations have arguably been loudest of all in fighting the Affordable Care Act. According to a study released this spring by nonpartisan analysts Kantar Media, “$418 million was spent on 880,000 negative TV spots focusing on the law, compared to $27 million on 58,000 positive spots.” Spending on negative ads outpaced positive ones by a ratio of roughly 15 to 1.

(Interestingly, a study by a scholar at the left-leaning Brookings Institution found that spending on negative ads had a slight but noticeable positive effect on Obamacare enrollment, especially in states in which Democratic senators are running for re-election. The scholar speculated that “anti-ACA ads may unintentionally increase the public awareness about the existence of a governmentally subsidized service and its benefits for the uninsured.”)

In short, Obamacare foes have made no effort to conceal their many energetic attempts to derail the Affordable Care Act. And yet, the fact that Republican governors and legislatures could — thanks to the intentional design of the statute — prevent their constituents from receiving subsidies for purchasing insurance simply by dint of not creating their own online exchanges was apparently never mentioned by conservatives until the law had been in effect for several months.

That’s curious, isn’t it? Forcing citizens to use federally created marketplaces was such a simple way to short-circuit Obamacare, and — this bears repeating — Obamacare opponents (now) contend that subsidies were never intended to be made available to people in states that didn’t establish their own Internet marketplaces. Yet this supposedly obvious attack on the looted Affordable Care Act never entered the conversation.

Mother Jones blogger Kevin Drum wrote about this oddity the other week, observing that conservatives:

covered the Obamacare battle pretty obsessively… Here’s my guess: every single article written by conservatives between January 2009 and March 2010 (a) assumed that subsidies were universal and (b) never so much as mentioned the possibility that they weren’t. In other words, they all believed in universal subsidies too because there was never any reason in their reporting to believe otherwise. Not one single reason.

But maybe I’m wrong! So here’s my offer: I will send a crisp, new ten-dollar bill to anyone who can point out a conservative who so much as suspected that subsidies were limited to state exchanges prior to March 2010. Surely that’s incentive enough? Let’s start digging up evidence, people.

As far as I can tell, nobody has yet asked Drum to pay off his wager. Weird, huh?

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