In his own reaction to the SCOTUS decision in King v. Burwell today, Jonathan Chait seems to be making an oblique but serious allegation against supporters of Obamacare: by taking the threat to the law seriously, they added to the overall negative atmosphere surrounding health reform, just like their prior failures to respond with sufficient heat to false conservative claims about the operation of the new system
In his remarks at the White House today hailing the Supreme Court’s denial of a right-wing nuisance lawsuit designed to cripple his health-care law, President Obama mused over why the public did not overwhelmingly approve of it. After all, the law is not only working as intended, but in some of the most crucial metrics — premium levels, federal budget costs — it is working considerably better than projected. Yet public approval has remained mediocre. The president settled on the fact that there are people benefiting from the law and they don’t even know it. There’s no card that says Obamacare.
But there is another possible explanation. The law’s critics have consistently presented a much louder and more certain attack, and its supporters a more cautious and muted defense, and this has remained the case even though, on virtually every point, the critics have been wrong and the supporters right..
Now one of my pet peeves is the idea that politics is all about which side yells the loudest and expresses the least self-doubt. It’s certainly not an idea I’d associate with Chait, who a number of years ago brilliantly made the case (sorry, no link; it’s lost in the TNR archive reconfiguring) that what separates liberals from conservatives these days is the willingness of the former to adjust their views to empirical evidence.
But Chait seems to think the ultimate failure of the plaintiff’s case in King v. Burwell was as obvious as, well, the phony claims of “skyrocketing premiums” we’ve heard from conservatives so often since the enactment of the Affordable Care Act:
There is apparently no cost whatsoever for Republicans repeating false claims about Obamacare. Every failed prediction of doom has simply been repeated anyway, until a new prediction of doom can be offered.
It is entirely possible that the same echo-chamber effect helped persuade the news media to treat the latest Obamacare lawsuit with far more seriousness than it deserved.
As several legal analysts have explained, the merits of the lawsuit are simply open and shut. To win the lawsuit, opponents must prove that Congress unambiguously wrote the law to deny tax credits to federal exchanges — a conclusion that not only is not unambiguously true, it’s clearly wrong and was actively disbelieved by everybody involved with the law, in both parties, until the a handful of right-wing lawyers concocted the theory after the fact.
Chait doesn’t quite suggest progressives’ willingness to entertain the idea that the challenge might succeed made it possible that it could actually succeed, but that’s one conclusion some might reach. But sorry: I don’t buy it. Even if the legal experts that Jonathan Chait and I rely on thought the suit was ridiculous, it did make it to the Supreme Court, and had the president not fortuitously been able to appoint some new DC Circuit judges just as the Halbig case arose, that court would have almost certainly ruled for the plaintiffs. The three Justices who dissented today sure don’t think this was a “right-wing nuisance lawsuit,” and if the objection is that they are not competent or honest jurists, then I would observe that we may just have to accept that the federal judiciary is not uniformly or even predominately composed of competent or honest jurists.
Maybe I’m swayed by the fact that hardly any liberals saw the “Medicaid option” portion of the 2012 Obamacare decision coming, and then most brushed it away as insignificant because no state would be crazy enough to turn down all that free money. We live in crazy times, and I don’t think progressives win any arguments by pretending there isn’t one. So no, I don’t feel guilty for writing about a plaintiff’s victory in King v. Burwell as a lively possibility.
