WASHINGTON -- Sen. Orrin Hatch (R-Utah) on Monday tried to argue that something he wrote in 2010 does not undercut the premise of the anti-Obamacare lawsuit that the Supreme Court will hear next week.
It was not a particularly convincing effort. Yes, we’re back to talking about King v. Burwell -- the case, scheduled for oral argument on March 4, about how and where the federal government may help people buy health insurance. The Affordable Care Act calls upon states to create special insurance exchanges, through which people without access to job-based coverage can buy policies -- and, depending on their incomes, qualify for tax credits that discount the premiums by hundreds or thousands of dollars a year. If states fail to act, the law says, the federal government should step in and create the exchanges instead. About these issues, there’s no real argument. The controversy is over whether those federally run exchanges should be functionally similar to the state-run versions. The answer, according to the lawsuit, is unambiguously “no.” Proponents of this view focus on a few passages in the law -- in particular, a key section authorizing the distribution of tax credits in exchanges “established by the State.” The section says nothing about federally run exchanges. This omission, the lawsuit claims, was intentional -- designed to compel states to act out of fear their citizens wouldn’t get the tax credits. If this view prevails in the Supreme Court, the consequences may be chaos and increased misery. Officials in roughly two-thirds of the states, including Florida and Texas, have not built exchanges. Millions of people now getting subsidized coverage in those places would lose their tax credits and, in most cases, become uninsured. Entire state insurance markets would likely become unstable.
But that’s only if the case succeeds. There’s a powerful argument -- a very, very powerful argument -- that the lawsuit’s supporters are misreading both the law and its history. For one thing, other provisions suggest the tax credits should flow in all states, regardless of who runs the exchanges. In addition, virtually every elected and appointed official who worked directly on the law has stated publicly that he or she understood subsidies would be available in all states. (The most recent to make this argument was Phil Schiliro, who was the White House director of legislative affairs during Obamacare’s enactment.) But some of the most powerful testimonials have come from the archives: mainly, quotes from Republican members of Congress from back in 2009 and 2010. And one of the more telling quotes came from Hatch.
Ever since the lawsuit that became King v. Burwell started getting attention, Hatch has been a staunch supporter of its arguments -- going so far as to join more than a dozen other Republicans on an amicus brief insisting that Congress intended to deny subsidies in states that didn’t create exchanges. In his statements about the case, he has said that the controversy over the law's meaning is not even a close call -- a sentiment he repeated during an appearance at the Heritage Foundation on Monday. “The incentive for states to act also could not be more clear,” Hatch said. “If a state fails to establish an exchange, its citizens lose out on millions -- perhaps even billions -- of dollars in subsidies.” But things didn’t seem so clear to Hatch back in January 2010, when he co-authored an op-ed for The Wall Street Journal. In making an argument about health care reform’s constitutionality, Hatch explained how the law would work -- and proceeded to sketch out precisely the structure he now says Congress did not intend to create:
A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government. [Emphasis added]
Near the end of Monday’s remarks, Hatch talked about that op-ed, which resurfaced a few weeks ago, and accused Obamacare defenders who have cited it of “twisting my words.” The subject of the op-ed, Hatch said, was not tax credits. “The op-ed is about the constitutionality -- or rather, the unconstitutionality -- of Obamacare, whereas King is about the meaning of a specific Obamacare provision,” Hatch said. “Different issues, different questions, different analysis.”
Hatch went on to say that, in the op-ed, he was actually making a much more nuanced argument -- touching, among other things, on parallels (or lack thereof) between Obamacare and the federal government’s push, in the 1970s, to make highway funding conditional upon states raising the drinking age. Hatch’s full comments are available at his website. Readers can decide for themselves whether his explanation actually puts the excerpt of the op-ed into a different context -- or whether, by talking about constitutionality and court doctrine on federal-state relations, he was simply trying to kick up some rhetorical dust. But even with a generous interpretation, it is hard to see how he can square his present support for the lawsuit’s premise -- specifically, that establishing an exchange is a condition for the distribution of tax credits -- with his seemingly clear statement from 2010 -- namely, that building an exchange “is not a condition for receiving federal funds.”
Of course, getting clarity on precisely what Hatch was trying to say then or now is not such a simple matter. At one point Monday, he used an analogy about a child cleaning his room that, if anything, seemed to reinforce the government’s argument, not the plaintiffs’ -- although, presumably, that was not Hatch's intention. Befuddling quotes like this, alas, are pretty common -- unique neither to Republicans nor to discussions of the Affordable Care Act. Pinpointing what a member of Congress was actually thinking based on a past statement is frequently difficult, all the more so when the legislation is complex.
That’s one reason that the hunt for congressional intent is so fraught -- and that, in cases of ambiguity over what a law actually says, courts traditionally allow executive branch agencies to make any “permissible” reading. The problem for Hatch and his allies is that, in King v. Burwell, showing such deference to agencies would almost certainly mean heeding the Obama administration’s interpretation of the law -- so that Obamacare could continue working as it does today.