Revisionist History on Obamacare Subsidies

As we drift toward a potentially disruptive Supreme Court decision on the subject of whether Congress in the the Affordable Care Act intended to withhold insurance purchasing subsidies from people in states that declined to set up their own exchanges, the large and ever-increasing evidence that nobody in the states making such decisions thought they were risking subsidies is becoming a potential factor in how the Supremes come down. At the Plum Line this morning, Greg Sargent collects a variety of statements from Republicans involved in state-level exchange decisions, and concludes with this compelling quote from University of Michigan law professor
Nicholas Bagley:

[T]he challengers say that Congress clearly threatened the states with the loss of tax credits if they didn’t set up their own exchanges. But the states read the ACA very carefully, and they didn’t see any threat.

It’s the worst kind of revisionist history to claim that the ACA put states on notice of the harsh consequences of failing to establish an exchange. The states had no idea that tax credits hung in the balance. And the Supreme Court has said time and again that statutes shouldn’t be read to impose unexpected burdens on the states. That basic principle — the idea that states must have clear notice of the consequences of their decisions — protects the rights of the states in our federal system. And it cuts hard in favor of the government.

That’s going to be an argument that only a iron determination to mess up implementation of the Affordable Care Act can overcome.

Support Nonprofit Journalism

If you enjoyed this article, consider making a donation to help us produce more like it. The Washington Monthly was founded in 1969 to tell the stories of how government really works—and how to make it work better. Fifty years later, the need for incisive analysis and new, progressive policy ideas is clearer than ever. As a nonprofit, we rely on support from readers like you.

Yes, I’ll make a donation

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.