In his recent piece for Salon.com, Simon Maloy uncovers a glaring contradiction in Orrin Hatch’s newest attack on the Affordable Care Act. Speaking to The Heritage Foundation on Monday, Hatch made clear why he believes the plaintiffs should prevail in King v. Burwell, the latest challenge to Obamacare to reach the Supreme Court. Maloy begins with some clarifying background:
A quick recap: the argument in King v. Burwell centers around whether subsidies for purchasing health insurance can be distributed through the 37 state health exchanges set up by the federal government. Supporters of the case argue that one isolated passage in the law clearly forbids this. Opponents argue that the plaintiffs are exploiting imprecisely drafted language in the law and that the clear intent of the legislation was to make the subsidies universal.
A key part of the plaintiff’s case in King v. Burwell is the notion that Congress deliberately wrote the ACA in such a way that it would deny subsidies to states that opted to have the federal government run their exchanges. Congress did this, they argue, in order to provide an incentive for states to set up their own exchanges. There is vanishingly little contemporaneous evidence to support this contention.
When Mr. Hatch spoke on Monday, he did so from the perspective of a true insider; indeed, he was a member of Congress when the bill was drafted. Maloy included part of the former Senator’s remarks in his article:
Congress did not…provide that subsidies would be available to subscribers enrolled through a federally established exchange. And the reason is obvious. If subsidies were available under both state and federal exchanges, states wouldn’t have incentive to create their own exchanges—to expend time and resources setting up an online insurance marketplace—because the subsidies would come either way. Fewer states would create exchanges, meaning the federal government would have to step in and create more exchanges of its own.
Maloy then compares Hatch’s current position (that it is “obvious” that Congress specifically intended to deny subsidies to states that chose not to set up their own exchanges) to his prior stance on the same section of the bill. Apparently, Hatch wrote a letter in 2011 to Treasury Secretary Tim Geithner complaining about the section, but in that instance, he pointed to sloppy writing rather than clear-cut intent to explain the language:
Because [the bill] was passed using reconciliation, it did not go a conference committee, which is typically where imprecise and sloppy legislative language is cleaned up and refined. In this letter, Hatch endorsed the idea that the subsidy question arose out of a drafting error (a ‘failure’) that resulted from the ACA’s unorthodox route to passage.
Now, however, he’s arguing something very different – that Congress wrote the law this way purposefully and with clear intent.
The case of King v. Burwell represents the best chance for opponents of Obamacare to strike a deadly blow to the law. Apparently, some opponents are not above rewriting history to make their case.