The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
If you're trying to convince the Supreme Court not to grant certiorari in a high-profile case, I suspect that publishing an op-ed in the Washington Post on the day the Court is scheduled to consider the petition is not the best strategy. I also suspect that it would be a good idea to ensure than such op-ed not include blatant falsehoods. It would be one thing for such an op-ed for forcefully advocate a given perspective on a contested issue. Quite another for it to simply make stuff up. In this case, however, we see the latter.
Friday the Supreme Court is scheduled to consider the petition for certiorari in King v. Burwell. Friday's Post also features an op-ed defending the IRS rule authorizing tax credits for the purchase of health insurance in exchanges established by the federal government at issue in King and several other pending cases. The op-ed is authored by Senators Tom Harkin (D-IA) and Ron Wyden, and Representatives Sander M. Levin (D-Mich.), George Miller (D-Calif.) and Henry A. Waxman (D-Calif.). As the accompanying byline notes, all five were heavily involved in the efforts to enacted health care reform and the eventual passage of the Patient Protection and Affordable Care Act. So if anyone knows how the law was passed, it should be these gentlemen. That makes the substance of their essay all the more odd.
The point of their op-ed is to suggest that it is fanciful to suggest (as I and others have argued) that the PPACA only authorizes tax credits in exchanges established by the states, even though that is what the law repeatedly says. I won't rehearse all of the arguments here. (If you're interested, you can read my Health Matrix article with Michael Cannon and our most recent amicus brief, or watch this October 30 panel at Cato, or my debate with Nicholas Bagley at Michigan.) In this post, I want to focus on this curious passage from the Harkin, et al., op-ed:
None of us contemplated that the bill as enacted could be misconstrued to limit financial help only to people in states opting to directly run health insurance marketplaces. In fact, as chairs of the three House committees that collectively authored the health-care reform legislation (Ways and Means, Energy and Commerce, and Education and the Workforce), three of us issued a joint fact sheet in March 2010 reflecting our intention that financial help would be available to consumers in the state marketplaces, whether the state were to run it directly or via the federal government. (Emphasis added.)
I literally had to read this paragraph three times to make sure I was reading it correctly. "The health care reform legislation"—that is, the PPACA—was "authored" in the Senate, not the House. There was not even a House-Senate conference to reconcile the competing bills because the election of Senator Scott Brown in Massachusetts deprived Senate Democrats of the 60th vote necessary to invoke cloture. This meant that the only health reform that could be enacted was that Senate bill. This bill was subsequently amended through the reconciliation process, but the heart of the bill—and the provisions relevant to the whether tax credits are available in federal exchanges—are from the Senate bill.
Now it is true that there was "health-care reform legislation" passed by the House, but it was not "the health care reform legislation" at issue. The House legislation never became law and was not, in any meaningful sense, incorporated in the PPACA. Indeed, this is why some House members had serious reservations about the Senate bill (including its exchange provisions) and why leading health care reform advocates had to argue vociferously that the Senate bill, for all its flaws, was still better than no bill at all. The health care reform proposals developed in the House may have been preferred by most reform advocates, but that's not what became law. What House leaders "intended" to do with legislation that was never enacted is irrelevant to the meaning of the PPACA because they didn't have the votes to enact their intentions into law.
The rest of the op-ed is not much better. (Whoever wrote this piece clearly failed to heed David Ziff's advice.) Let's start with the "fact sheet" linked in the above quote. This fact sheet is hardly evidence of anything. Yes it notes that there would be federal exchanges, and it notes that there would be tax credits. But it also omits relevant eligibility criteria, such as the income floor for tax credit eligibility, so it is anything but an authoritative account of all the bill's relevant provisions, and it doesn't contradict the PPACA's plain text.
While reiterating that the authors shared a "universal understanding that financial assistance would be available in every state," the op-ed fails to acknowledge that one of the authors—Senator Harkin— sponsored a health reform proposal that conditioned tax credits on state cooperation and that the CBO still scored this bill (like the PPACA) on the assumption that tax credits would be available in all fifty states. In other words, the CBO (like the bill's authors) assumed all fifty states would cooperate.
While acknowledging that "the formula used to determine how much financial help Americans are eligible to receive" only references insurance purchased in exchanges "established by the State," it omits the fact that the Act also defines coverage months for which premium assistance is available as those for insurance purchased on exchanges "established by the State," nor does it note that these provisions were added at separate times in the drafting process. The op-ed goes on to argue, as the federal government has, that when HHS is required to "establish and operate" an exchange under Section 1321 of the act, this exchange established by the federal government actually constitutes an exchange "established by the State," ignoring that "State" is defined to include on only the fifty states and D.C., as well as the meaning of "establish." And so on. Again, if you wish to review these arguments, see the links above.
The authors make lots of claims about what they intended in the PPACA, but they cite to no probative, contemporaneous evidence to undermine—let alone contradict—the plain statutory text. And while they insist their account should be authoritative, at least four of the five (Harkin, Levin, Miller, and Waxman) insisted that, under the PPACA, if you liked your insurance plan you would be able to keep it. That was never true, as those who read and understood the PPACA always recognized. With such claims, as with this op-ed, these authors have shown that they either don't understand the bill they enacted, or are willing to misrepresent it. Take your pick, but neither choice is pretty.
UPDATE: Josh Blackman thoroughly thrashes the op-ed here. (He also notes I wrote "everything" above when I should have written "anything." Duly noted and fixed.]
[NOTE: A few additional links and typos fixed at 7:35am EST.]