The Supreme Court hears an Obamacare fairytale

Reuters has Steven Brill’s commentary…

Congressional intent will be hotly debated in the U.S. Supreme Court this Wednesday in King v. Burwell, the latest litigation vehicle being deployed by opponents of Obamacare. “Congress could not have chosen clearer language to express its intent to limit subsidies to state exchanges,” the plaintiffs, represented by the Competitive Enterprise Institute, argue in their brief.

That is fiction. Provable fiction.

Congress knew exactly what it wanted to do when it passed the Affordable Care Act in 2010, and contrary to the plaintiffs’ claim, that included wanting subsidies for buying health insurance on the Obamacare exchanges to be available to all citizens, even those residing in the 36 states that did not set up their own exchanges, instead relying on the exchange set up by the federal government.

I’m a reporter. I hate to take sides. And I certainly didn’t in what has been widely reviewed as my even-handed treatment of the merits and demerits of Obamacare in my recently published book about the broken American healthcare system and how Obamacare was conceived and implemented to fix it. But this is one of those issues where reporters err if they write an “on the one hand, on the other hand” story that creates patently false equivalency.

As I wrote in a November column for Reuters, soon after the Supreme Court’s surprising decision to take this case, disputes that end up at the court are usually about the interpretation of the Constitution and statutes, not about facts. The press is mostly left to provide the basic background of the dispute and then explain the positions of the lawyers on each side. But at its core, this case, as with any about congressional intent, is about knowable facts, not about the lawyers’ views of the law.

King v. Burwell hinges on one poorly worded sentence cited by the plaintiffs in a 961-page law that seems to negate a linchpin of that law — the availability of those subsidies to middle-class families so they can buy health insurance. The question is whether that sentence should somehow outweigh all the other provisions in the law that contradict it. And when the meaning of a federal law ends up being disputed in court because the wording is vague or internally contradictory, the dispute turns on the kinds of facts journalists are used to digging out. That’s because judges are supposed to figure out what the legislators intended the law to mean and to do.

I know what the legislators intended because in researching my book, I interviewed pretty much everyone involved in the conception and writing of the law. Moreover, I did that long before King v. Burwell had become the Obamacare opponents’ favorite new weapon, which means that those opponents had no reason to spin the fairytale that Congress did not intend for those subsidies to go to the millions of Americans signing up on the federally run exchange. At the time, no one had a dog in a fight over congressional intent, because there was no fight.

I also reviewed reams of internal emails and memos generated by congressional staffers working for both Democrats and Republicans. In no document from start to finish, in a legislative process that spanned more than two years, is there even a hint of anything but the unambiguous assumption that the law, whose first section is titled “Quality, Affordable Health Care for All Americans,” would indeed provide these insurance subsidies for all Americans who needed them.

In short, I had a catbird seat for doing exactly that kind of fact-based reporting that anyone judging a case like this — reporters, as well as judges — should do. But I didn’t appreciate it because neither I nor the people I was interviewing had any expectation that this case would become something the Supreme Court would take seriously.

Indeed, when I mentioned the case to several of those sources during the spring and summer of last year, all of them – Democrats and Republicans – did some version of an eye roll. This is why there is only scant mention of the case in my book, the draft of which was completed before the court took the case.

I’ve now gone back and looked at my notes and can report that I interviewed 21 congressional staffers and members last year in my effort to reconstruct the day-by-day narrative of how Obamacare happened. None ever mentioned the possibility that the subsidies did not apply to the states in the federal exchange.

On the contrary, everything they told me — and all of the contemporaneous emails and other internal documents I reviewed — assumed that the federal exchange would simply be a substitute for a state exchange if a state decided not to launch its own, and that the same rules would apply. That is consistent with the instructions Democratic and Republican staff members gave to the Congressional Budget Office when they asked it to “score” (estimate the cost of) various drafts of the law, including the final version.

Perhaps most telling was Iowa Republican Senator Charles Grassley’s early take on the suit. Grassley is the Republican most intimately involved with the drafting of the law. Before finally siding with his GOP colleagues and refusing to vote for the bill, he and his staff worked closely with Democrats in the Senate, negotiating provisions and language and even adding several important provisions of their own that made it into the law.

Last June — again, as an afterthought because the suit seemed so unlikely to be taken seriously by any court — I asked Grassley about it as he walked me through the Senate dining room following an interview. At first he did not even know what I was talking about. When I explained the suit to him and asked if it was possible that the law intended to bar subsidies for people on the federal exchange, he still seemed not to understand and said that it made no sense. Put simply, he seemed incredulous. If congressional intent is the issue, someone should have taken Grassley’s deposition.

After I recounted Grassley’s puzzled dismissal of the King suit in a television interview a few weeks ago, Rodney Whitlock, the senator’s healthcare policy director, called me. It was a surprising conversation. He did not deny my account or even that he and his boss thought the subsidies applied to the federal exchange. Rather, he complained that what Republicans intended, and what Grassley in particular intended, “is not the issue. It’s what the Democrats intended that counts, because they wrote the bill. So please stop calling attention to us.”

By all accounts, the single person on the Democratic side most responsible for drafting the actual law is Elizabeth Fowler. She served as healthcare counsel to then-Senator Max Baucus, the Montana Democrat who, in 2010, chaired the Senate Finance Committee. When I first asked Fowler about the lawsuit in May 2014, she, too, had no idea what I was talking about.

In July, after the case had been blessed in a 2-1 vote by two Republican-appointed judges on one appellate court, Fowler told me that, “The judges [on the panel who sided with the plaintiffs] clearly don’t care about congressional intent.”

In my reporting, I found that Fowler was a unique source of bipartisan agreement. She was universally liked and regarded as a straight shooter not only by Democrats, but by Republican staffers and senators as well. “Liz is a terrific person, who helped us all,” Grassley told me.

The Democrats in Congress for whom Fowler worked have repeatedly stated, including in court papers, that they intended exactly what the law plainly says was their intent.

Again, congressional intent is a fact-based inquiry, not a matter of opinion. Given the unambiguous mountain of facts arrayed for the defense (and well-presented in the briefs submitted by the defense side), it is hard enough to see how the lawyers on the plaintiffs’ side could actually believe in their case. Their zeal in wanting to kill Obamacare is acceptable advocacy, I guess.

But if a majority of supposedly objective justices decide to ignore the facts and buy their argument, they will have engaged in a breathtaking act of political activism. For those of us who have always regarded our highest court as a national monument to the rule of law, it will be profoundly depressing.

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