“Yes, but the whole point of a doomsday machine is lost if you keep it a secret! Why didn’t you tell the world, eh?” – Dr. Strangelove
So the DC Circuit Court ruled in Halbig v. Burwell hat health care subsidies can only go to states that set up their own health care exchanges rather than use the federal ones. That means indivdiuals from the 34 states who get subsidized health care from the federal exchange would no longer be able to get subsidies. (Another court ruled against this logic today.) I don’t normally do health care stuff, but I’ve read a lot about this case and something strikes me as very odd.
As I understand it, those on the right who are pushing the Halbig case argue that there’s a doomsday machine built into Obamacare. (Adam Serwer at MSNBC also caught this doomsday machine analogy.) If states don’t set up their health care exchanges then they don’t receive subsidies for health care from the federal government. According to this theory, the liberals who designed health care reform did this knowing that if subsidies were pulled, the system would collapse for states that didn’t set up their exchanges.
It’s important to note that those on the right are not arguing that this is a typo in the bill, because that wouldn’t necessarily be sufficient to overturn the subsidies. They are arguing that Congress intentionally put this language in there to compel, bribe, incentivize, and otherwise threaten states that didn’t set up their own exchanges. In the rightwing argument, liberals were saying “we are making the citizens of your state purchase health care, and if you don’t set up an exchange they won’t get the subsidies necessary to make the system work, so you’d better set up an exchange.”
The right’s argument hinges on the idea that since there’s no evidence that this isn’t the intent, it must be the intent. As the two authors of the legal challenge put it, Obamacare “supporters’ approval of this text reveals that their intent was indeed to enact a bill that restricts tax credits to state-run Exchanges. At no point have defenders of the rule identified anything in the legislative history that contradicts” their reading.
Here’s the thing, though: like Strangelove notes, a doomsday machine only works if you tell others about it. So, why weren’t the people in the vast network associated with Obamacare telling everyone about this threatening doomsday device after the bill passed?
If this was actually the intent, you’d expect that during the period where states were debating whether to set up exchanges, this would have been a major threat raised by somebody. Anyone, from President Obama to congressional leaders to health care experts and lawyers to activist groups on the ground in red states fighting for implementation, would have been saying, “if your state doesn’t set up a health care exchange, your citizens are screwed. At the very least, you’ll be leaving money on the table.” (“Leaving money on the table” is always a good point to bring up, and if this doomsday machine really were the intent of the law, it would be true.)
I know of no evidence of this being the case. Does anybody? Numerous people are arguing that the legislative intent is clearly on providing subsidies to the federal exchange users. No wonder the dissent argued that the Halbig ruling was “a fiction, a post hoc narrative concocted to provide a colorable explanation for the otherwise risible notion that Congress would have wanted insurance markets to collapse in States that elected not to create their own Exchanges.”
That doesn’t change what the DC Circuit did, of course, but it should make a random person stop and wonder how much of a cynical ploy this whole thing is.