Last week, the latest desperation lawsuit to stop Obamacare — which had previously been laughed out of court — got new life when two Republican-appointed justices sided with the plaintiff. At that point, events were still proceeding in more-or-less familiar ways. But over the last few days, events have taken a bizarre and unfathomable turn. The original question — How will the health-care law be affected? — has given way to deeper ones, like, Is there such a thing as truth? and Can the power of motivated reasoning make ideologues believe literally anything?
The lawsuit, Halbig v. Burwell, is a quixotic attempt by right-wing legal activists to capitalize on sloppy legislative language to carve a large chunk out of the Affordable Care Act. The law is designed for each state to set up exchanges where uninsured people can shop for health insurance. It provided for the federal government to run exchanges in states that failed to do so. The mistake pertains to tax credits, which are a vital component of the exchanges — making insurance affordable to low- and middle-income customers. The law’s text refers directly to tax credits for people enrolled in state-based exchanges. Several other sections of the law imply that tax credits would be available to the federal exchange but fail to say this directly.
The plaintiffs’ argument is that the direct language in that single line is all that counts, and the language in the rest of the law does not. This is a legal argument that has no chance to win over judges who aren’t desperate to latch on to any rationale to gut Obamacare, and only a tenuous chance to win over even judges who are. The argument is, Democrats in Congress made a typo when you wrote Obamacare, so ha-ha, you lose. The card says “Moops.”
It was a wildly tendentious argument, but an argument nonetheless. Then something changed. Last week, the Competitive Enterprise Institute, a right-wing think tank, found video of Jonathan Gruber, an MIT economist and close adviser of the Obama administration, saying in 2012 that federal exchanges would not offer tax credits.
The Gruber video encouraged conservatives to suddenly invent a new and more sweeping argument. The language in that line of legislative text wasn’t a typo, conservatives now maintain. It was Congress’s actual plan to deny tax credits to customers on the federal exchanges. “Liberals feared some states wouldn't set up exchanges,” argues The Wall Street Journal editorial page, among many others, “so they deliberately wrote incentives into the law so the states would do so.” This new argument lends the conservative challenge a veneer of legal and moral plausibility. Now they aren’t trying to use the courts to throw millions of people off their insurance by using an absurdly narrow reading of a technical error. They’re enforcing the actual intent of the law.
It is impossible to convey just how fantastically wrong this argument is. Outside of a couple of stray remarks by Gruber — more on that below — literally nobody believed that Obamacare was designed to deny tax credits on the federal health exchange. Reporters who covered the law full-time are completely certain about this. Staffers who wrote the law have carefully explained how the language wound up as it did. Their contemporaneous emails confirm that they believed this at the time and have not changed their story. Even Gruber himself has repeatedly stated that the federal exchanges give tax credits, too.
Lots and lots of people followed the Affordable Care Act really closely. If the federal exchanges were intended not as a backup but as a punishment, denying their customers tax credits, it would have been a huge deal. People would have known about it. The Obama administration would have publicized the threat. This enormously consequential policy decision would be the subject of thousands of news stories and public comments. The news would not be confined to one economist speaking about it a couple of years later.
It is hard to summarize the liberal response to the right’s bizarre new revisionism except as the kind of stammering, bug-eyed disbelief that occurs when somebody is forced to defend a factual proposition that everybody knows is true. It is exactly as if conservatives are now insisting not just that we must follow the misprint on the card, but that the people who invaded Spain in the eighth century were actually called “the Moops.” I’m sure that if the vast network of right-wing activist organizations were as dedicated to establishing this argument as they were to attacking Obamacare, they could actually pull together an equally strong defense. Maybe there was a document, somewhere, that spelled it “Moops.” Maybe there are complex ambiguities involving the evolution of different letters.
And yet it is surprisingly easy for committed ideologues to fabricate a preposterous counter-narrative out of a widely documented public event. It is easier still to simply consign the “controversy” to the unknowable mists of time. “Unfortunately, the record of congressional deliberation on this matter has been thin, perhaps because in the rush to get something passed, there wasn’t much congressional deliberation; many of the members of Congress who voted on the final bill undoubtedly had little idea what was in it other than “health care!” writes libertarian columnist Megan McArdle, “That has left room for both sides to claim they’re right.” Maybe everybody on all sides missed this massive development. Maybe the entire passage of Obamacare was a dream!