In a conference call today, while going over the meaning of the Halbig v. Burwell decision, the Cato Institute's health care freedom fighter Michael Cannon drained the national strategic chutzpah reserve. Were people blaming him and litigators for people being threatened with higher health care costs? They were fingering the wrong guy.
"If 5 million people lose subsidies, it is because the administration I think recklessly was offering them subsidies that it had no authority to offer," said Cannon. "If that causes dislocation, if that causes disruption, I think that responsibility lies with the administration."
Had Cannon and allies not sued (in multiple courts), the subsidies wouldn't have been challenged at all. But he wasn't alone in making the argument.
"This means that the President has been misrepresenting the true costs of health coverage to millions of American families," argued Tennessee Rep. Diane Black, one of the GOP's frequent health care messengers. "Consider that over a million taxpayers could already be on the hook for improper subsidy payments due to an inability of the federal government to verify income eligibility—now anyone who has received a subsidy at all on the federal exchange could potentially be faced with having to make back payments, all due to President Obama’s recklessness."
Cannon's not running for anything, and Black's in a safe seat, but the politics here are clear. The Halbig decision, which many expect to be reversed en banc, is being reported as a threat to millions of people who had been getting health care subsidies. Republicans need to reframe this, as they reframe their opposition to the overall law. (Repealing the entire law would leave the Obamacare millions without any plans at all, and would not magically restore individual plans lost or altered in 2013.)
How else can they do it? A few ways.
This proves that Obama breaks the law all the damn time. That's Ted Cruz's response today, as it was in 2013 when I asked him about the coming Halbig case. The 2–1 victory is a repudiation of "lawlessness," of the same tyrannical overreach that led Obama to delay the employer mandate, which John Boehner is currently suing over. And as Cruz goes, so go several other people.
President Obama's attempt to circumvent the law has been blocked by the realities of our Constitution. #Halbig— Rep. Renee Ellmers (@RepReneeEllmers) July 22, 2014
This proves that Obamacare can never work. That's the response from Boehner, who said today that the law could "never be fixed," and that "the American people recognize that Obamacare is hurting our economy and making it harder for small businesses to hire," etc. (This argument sidles up nicely to Cruz's—the fact that Obama, DHS, and the IRS need to tweak the law proves that it's not working and indeed never could.)
This proves that Democrats never read the law. Funny enough, even though this argument seems overly arch, it's the one with the most cultural resonance. Let Oklahoma's Jim Bridenstine explain:
The (largely true) idea that members of Congress did not read all of Obamacare before forcing it on Americans—at best, few of them comprehensively understood the thing—was a powerful motivator for Republican and independent voters in 2010. It's been more than four years since the Pelosi quote referred to by Bridenstine, but if you search Twitter you see scores of people mocking it. Those idiot Dems didn't even read the ACA before rushing it through!
Everybody seems to forget the next part of Pelosi's sentence. I'll just quote the whole graf:
You've heard about the controversies within the bill, the process about the bill, one or the other. But I don't know if you have heard that it is legislation for the future, not just about health care for America, but about a healthier America, where preventive care is not something that you have to pay a deductible for or out of pocket. Prevention, prevention, prevention -- it's about diet, not diabetes. It's going to be very, very exciting. But we have to pass the bill so that you can find out what is in it, away from the fog of the controversy.
History has not been kind to Pelosi, and the ACA remains largely unpopular even as some of its elements catch on. But in March 2010, she was telling the National Association of Counties that the ACA contained all sorts of great stuff that wasn't clear from the news cycle. She wasn't saying that the contents had to be concealed until the vote took place, even though that's how it's been remembered. (In 2013, David Gregory credited Pelosi for "the idea that you have to pass it before you know what's in it.")
But the Pelosi joke gets at a truth even Democrats will admit. In 2010 they found themselves up against a wall. After the election of Scott Brown, who promised to join a filibuster of the health care bill, the only way for the party to pass any version of the ACA was to pass the Senate version in a hurry. Had they gone through the normal conference committee process, where ungainly language could have been removed, the bill would have been choked by 41 Senate Republicans. So, yes, the government's official argument is that the Congress screwed up a few lines of the law. And the Republicans get to say whatever they like about that.