Thursday, July 31, 2014

The New Secret History of the Obamacare Deniers

By Jonathan Chait, New York Mag

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.”

(More here.)


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