Obamacare Means What Obamacare Says: Can we discern congressional intent by what was never said?

REASON ^ | 07/30/2014 | Peter Suderman

[SeekAndFind]

Is it possible to discern congressional intent by what was never said?

In the wake of last week's D.C. Circuit court ruling in Halbig v. Burwell, that, contrary to the administration's current implementation, Obamacare does not allow insurance subsidies in federally run health exchanges, supporters of the law and reporters who covered it have argued as much: No one in Congress ever said that subsidies were limited to state-run exchanges, and reporters never heard about a debate. The idea was unheard of before critics of the health law decided to challenge the administration in court.

It's true that the legislative history isn't particularly revealing. The specific issue of whether subsidies would be available in federally established exchanges was rarely if ever brought up prior to the law's passage.

Thankfully, there's no need to infer from what wasn't said. There is a clear record of congressional intent in the plain text of the legislation that Congress voted into law.

Furthermore, the basic idea that federal credits for health coverage should be conditioned on state action was not created by critics. On multiple occasions, Congress previously threatened to withhold coverage credits from states that don't play ball with federal rules. One influential liberal health policy scholar suggested the idea before the bill was passed, and another confirmed it after it became law. Even the Internal Revenue Service (IRS), which produced the rule justifying the administration's issuance of subsidies in federal exchanges, initially believed that the credits were limited to exchanges run by states.

[Lorianne]

That’s the way I see it too ... but there are already murmerings in the media about individuals having to pay back the subsidies. They are trying to prime us for that.

Ha!

I wonder how successful that would be?

[Political Junkie Too]

Revisionist history.

This article from the American Spectator from July 9, 2012, shows that they knew all along that the federal government was barred from subsidizing federal exchanges, and how the language denying federal exchange subsidies was made in reaction to the election of Republican Scott Brown in Massachusetts.

The language was clear to all back then. I would be very surprised if the language became suddenly, unexpectedly, unclear today.

Also, from what I've been reading, when SCOTUS upheld Obamacare, they also ruled 7-2 that the federal government violated the 10th amendment when they tried to force the states to run their own exchanges via withholding medicare funding. This allowed the states to reject establishing their own exchanges. This is where it all started.

SCOTUS ruled 7-2 that states can opt to not run subsidized exchanges. Is SCOTUS going to now rule that because of their prior rule, the federal government can NOW get subsidies, since it failed to be the incentive that Congress expected it to be?

Guy Benson at Townhall.com chronicled the history of what people thought in this article posted on the day of the decision, and how Democrats added the language prevent subsidies for federal exchanges in reaction to Republican Scott Brown of Massachusetts being elected to the Senate.

Now that Brown is no longer in the Senate, Democrats no longer feel beholden to the compromise commitments, regardless of what the law of the land says.

They are looking to the courts to restore what they originally wanted, but were "forced" to concede at the time due to "politics."

Never mind that the law itself might not have even passed if these compromises weren't made in the first place.

That's how Democrats play the game. Always pushing forward. Even a retreat is really a flank.

Republicans, on the other hand, don't even retreat, they refuse to engage at all because they envision the worst-case scenario and then operate as if the worst case has already happened. Republicans create their own self-fulfilling prophecies of defeat.

If the Democrat expectation really is that it doesn't matter what compromises they make situationally because the court will restore what the Democrats wanted eventually anyway, then we are dealing with bad-faith actors within Congress; Democrats who don't care what they agree to, and Republicans who go along with the charade.

-PJ