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
[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.