Obamacare is increasingly lowering the number of Americans without health insurance, but it faces a threat by a lawsuit before the Supreme Court today.
This case (King v Burwell) would take away subsidies from millions who purchased their insurance through a federally run exchange. It’s based on the absurd argument that the Congress didn’t mean for subsidies to be available unless one’s state set up an exchange — something the Congressional Budget Office never assumed in its many estimates of the ACA’s cost.
Some analysts argue that Republicans would face enormous backlash if those millions suddenly lose their insurance.
In the Washington Examiner, conservative pundit Byron York quotes an unnamed GOP aide fretting about “ads saying cancer patients are being thrown out of treatment, and Obama will be saying all Congress has to do is fix a typo.” [source]
Indeed, the possibility of tens of thousands of Mainers having the rug pulled out from under them motivated Rep. Poliquin to vote against a flat out repeal and pundit Matt Gagnon (who wants you to know he really, totally, definitely doesn’t think the law is “working”) to explain that Poliquin’s vote was reasonable because, Gagnon says, it “would negatively impact tens of thousands of Mainers.”
Former House Speaker Nancy’s Pelosi’s famous comment — and its misinterpretation — help make sense of the absurdity of this case.
For years, the strongest opponents of Obamacare will sometimes throw in something like this: “Well, you know Pelosi said you had to pass the law to find out what’s in it.”
This has even been used by lawyers trying to gut the law in one of their briefs. It’s their fall back from saying the law actually meant to limit subsidies to state exchanges, to a position that maybe this wasn’t known but, in any case, the limit is in the text. (That latter claim runs into trouble because it conflicts with the Court’s doctrine that particular parts of laws are understood in the law’s broader context, but that’s another story.)
When Pelosi’s comment is used by ACA opponents, the implication is that the ACA was rushed through, “shoved down our throats,” and no one had a chance to read it. And they say that Pelosi even admitted that.
But that interpretation is not only false, but also demonstrates the utter fiction that underlies this lawsuit.
To explain this requires a little timeline related to the ACA’s passage and Pelosi’s remark which shows that the law was well vetted when passed.
An extremely detailed version of this can be found in the brief by several health policy scholars submitted to the Supreme Court.
Here are some highlights of the timeline:
- Shortly after the election of Barack Obama in November 2008, Senate Finance Committee Chair Max Baucus (D-Montana) white paper laying out key elements for a health reform bill. It included the concept of subsidized private insurance, an individual mandate and a health insurance exchange where people could shop for and choose an insurance plan. (All of these elements had been tried in Massachusetts already.)
- Senators worked in the summer and spring of 2009 drafting a health policy law, which was based on the white paper. Hearings were held with many witnesses. As the brief notes, “Each relevant bill considered by the Senate in 2009 provided for backup federal authority over an exchange if a State did not exercise its authority.”
- The Senate Finance Committee, before forwarding the bill to the Senate floor, held 53 meetings on provisions of the bill and spent 7 days debating amendments. The Senate devoted 25 legislative days, one after each other, to the bill before voting on it.
- The Senate passed a health reform bill on December 24, 2009.
- While the House had been working on its own version of the bill and passed one in November 2009, the election of Scott Brown as Senator on January 19, 2010 made a compromise between the House and Senate versions impossible since Brown vowed to vote against any version of the Affordable Care Act. Thus Pelosi and others decided to just vote on the Senate bill.
- In March 21, 2010, the House of Representatives voted for the Senate version of the ACA. Recall that this had been passed nearly three months before.
When did Pelosi make her remark?
Pelosi made her now famous comment on March 9, 2010. This was about two and a half months after the Senate passed the version of the ACA that had become law.
The entire Senate version of the bill had been on-line that entire time and there were many opeds and analyses of it. There was nothing secret about what was in the ACA.
In addition, reporters covering Pelosi’s comments recognized that what she meant was that people would come to understand the benefits of the law as they saw it carried out.
Here’s what Politico said back then:
Speaker Nancy Pelosi said Tuesday that people won’t appreciate how great the Democrat’s health plan is until after it passes.
“You’ve heard about the controversies, the process about the bill…but I don’t know if you’ve heard that it is legislation for the future – not just about health care for America, but about a healthier America,” she told the National Association of Counties annual legislative conference, which has drawn about 2,000 local officials to Washington. “But we have to pass the bill so that you can find out what is in it – away from the fog of the controversy.”
During a 20-minute speech, she touted benefits she thinks will be tangible to the audience’s employers. She said there’s support for public health infrastructure and investments in community health centers that will reduce uncompensated care that hospitals now need to deliver.
As you can see, Pelosi’s comments had to do with what people would gain from the ACA.
There was no secrecy about what was in the law.
How could there be, when the House was to pass a version that the Senate passed more than two months before?
House Members and Senators knew that the ACA didn’t restrict subsidies to those buying insurance through state-run exchanges.
That never came up in all the comments on the House and Senate floor. The CBO never estimated costs based on such a scheme. And no state that discussed whether to set up an exchange ever considered the possibility that this decision would have implications for whether their residents would have access to subsidies.
So this lawsuit is based on a phony legislative history and an absurd, widely promulgated misinterpretation of Pelosi’s remarks.
Unfortunately, that doesn’t mean the lawsuit won’t succeed. If it does, those who lose their insurance will be the biggest losers.