WASHINGTON -- Over the past year, a number of Republican lawmakers have gravitated to the claim that there is a central flaw in President Barack Obama's Affordable Care Act. Jumping aboard a lawsuit that has now made its way to the Supreme Court, they argue that a close reading of the bill prohibits the federal government from giving subsidies to those who purchase health insurance on exchanges that are run by the federal government, of which there are 34.
The question is whether this embrace of the lawsuit represents an epiphany or crass political opportunism. Because not long ago, many of these Republicans were publicly assuming the subsidies they now question were available to everyone, regardless of the exchange on which they shopped.
An August 2013 letter to then-Health and Human Service Secretary Kathleen Sebelius shows how Rep. Paul Ryan (R-Wis.) made this exact shift. Back then, Ryan declared these subsidies would cost taxpayers more than $1 trillion -- an amount only possible if they were available nationally, not just in the 15 state-run exchanges in place at the time.
This acknowledgment of the Affordable Care Act tax credits for low- and middle-income households in every state contradicts a brief Ryan and 14 other GOP lawmakers filed to the Supreme Court last month. That document states, “The plain text of the ACA reflects a specific choice by Congress to make health insurance premium subsidies available only to those who purchase insurance from ‘an Exchange established by the State.’”
In March, the Supreme Court will take up a case called King v. Burwell, which asserts that those words mean subsidies can go only to residents of states that created their own exchanges under the law, and not in states that allowed the federal government to do so. The lawsuit doesn’t stop there, because it also claims Congress intended this to be the case, an argument vehemently disputed by the Obama administration and the congressional Democrats who wrote the law. The high court is expected to rule in June.
Republican lawmakers are jumping aboard the Obamacare lawsuit bandwagon in the meantime. The problem with the mainstream Republican adoption of the claim that Congress meant to deny subsidies to consumers using federally run exchanges is that Republicans didn’t express that view during the congressional debate in 2009 and 2010, nor in the time that followed -- until the chances increased that the suit would succeed.
On the contrary, available evidence indicates Republicans like Ryan accepted that health insurance subsidies were available to anyone using an exchange, no matter what kind. In fact, Republican lawmakers and conservative groups were far more inclined to attack the law because of the vast size of the universal subsidies than to challenge the idea that the subsidies were universal.
In the letter Ryan sent to Sebelius when he was Budget Committee chairman in 2013, which was part of a number of documents obtained through a Freedom Of Information Act request to the Department of Health and Human Services, he wrote:
The committee has many questions about how this law is being implemented. Of particular interest is how the federal exchange subsidies, with an estimated gross cost of more than $1 trillion, will be managed, administered, and verified.
That $1 trillion price tag is based on Congressional Budget Office estimates, which always have assumed distribution of tax credits through any type of exchange. A letter Sen. Susan Collins (R-Maine) sent Sebelius on Dec. 6, 2013 -- which likewise was part of the response to the FOIA request -- also accepts this $1 trillion projection for subsidies in every state. Collins did not sign on to the Supreme Court brief with Ryan and others.
Ryan made a similar assumption during a hearing in March 2010, a few days after Obama enacted the Affordable Care Act, Talking Points Memo reported this month. At the time, Ryan described the subsidies as available to “just about everybody in this country, people making less than $100,000.”
Brendan Buck, a spokesman for Ryan, did not say when or why the Ways and Means Committee chairman changed his views on the meaning of the Affordable Care Act. Instead, he noted that the congressman was operating off of CBO numbers when he wrote his August 2013 letter, and questioned why such material was being resurfaced now.
"The increasingly half-baked 'evidence' that defenders of the law are citing is revealing quite a sense of rising panic that Obamacare is in real trouble," said Buck.
While the King lawsuit does, indeed, place Obamacare and millions of health insurance consumers in real trouble, the Republican argument about congressional intent has trouble of its own.
Sen. John Barrasso (R-Wy.) is another of the 15 Republican lawmakers whose brief to the Supreme Court declares subsidies were only meant for state-run exchanges. But in 2011, Barrasso had a different point of view, Salon reported Tuesday.
At a press conference touting legislation that would have allowed states to opt out of Affordable Care Act insurance regulations, Barrasso stated the subsidies in question would be provided no matter what a state did. Taxpayers are “not going to give up that right to have an opportunity to use that money,” he said.
That same year, Rep. Darrell Issa (R-Calif.), who was chairman of the House Oversight and Government Reform Committee, issued a report titled "Uncovering the True Impact of the Obamacare Tax Credits." In the footnotes of that report, he and his staff adopted the argument that Obamacare defenders now use to defend the legality of sending subsidies to all eligible recipients, regardless of what exchange they shop on.
"State health insurance exchanges will be set either by the state or by the federal government if a states refuses to set up its own exchange," the footnote reads. "The exchanges are basically portals where individuals can purchase health insurance. Many individuals who purchase insurance through an exchange will qualify for a tax credit."
Also in 2011, Republicans unanimously supported a bill using subsidy funding to pay for a change in tax law. Doing so explicitly assumed those tax credits were national, as The New Republic reported last week.
A ruling against the Obama administration would devastate health insurance markets in the states where the federal government currently operates the exchange marketplaces.
An estimated 10 million people would lose their health coverage in absence of the subsidies received by more than 85 percent of exchange enrollees. And the abrupt departure of that many people from the insurance pools in those states would destabilize those markets, jeopardizing coverage for those who could still afford it, and the ability of insurers to continue operating in these states.
Subsidized health insurance consumers in the home states of Ryan, Barrasso and Collins would see some of the highest premium hikes in the country if the King lawsuit prevails, according to federal data analyzed by The Huffington Post.
This could be prevented by amending those few words in the Affordable Care Act that created the opening for the legal challenge. Republicans refuse to consider this solution. Ryan and other GOP leaders maintain they instead will address the disruption by devising an alternative set of health care reforms -- a task they have failed to complete in the five years since Obamacare became law -- sometime in the next five months.
Jason Cherkis contributed reporting.