The Supreme Court hears an Obamacare fairytale

March 2, 2015
U.S. President Obama meets with citizens who wrote letters about how they benefited from the Affordable Care Act at the White House in Washington

U.S. President Barack Obama (C) meets with citizens who wrote letters about how they benefited from the Affordable Care Act at the White House in Washington, Feb. 3, 2015. At right is Health and Human Service Secretary Sylvia Burwell. REUTERS/Kevin Lamarque

Congressional intent will be hotly debated in the U.S. Supreme Court this Wednesday in King v. Burwell, the latest litigation vehicle being deployed by opponents of Obamacare. “Congress could not have chosen clearer language to express its intent to limit subsidies to state exchanges,” the plaintiffs, represented by the Competitive Enterprise Institute, argue in their brief.

That is fiction. Provable fiction.

Congress knew exactly what it wanted to do when it passed the Affordable Care Act in 2010, and contrary to the plaintiffs’ claim, that included wanting subsidies for buying health insurance on the Obamacare exchanges to be available to all citizens, even those residing in the 36 states that did not set up their own exchanges, instead relying on the exchange set up by the federal government.

I’m a reporter. I hate to take sides. And I certainly didn’t in what has been widely reviewed as my even-handed treatment of the merits and demerits of Obamacare in my recently published book about the broken American healthcare system and how Obamacare was conceived and implemented to fix it. But this is one of those issues where reporters err if they write an “on the one hand, on the other hand” story that creates patently false equivalency.

As I wrote in a November column for Reuters, soon after the Supreme Court’s surprising decision to take this case, disputes that end up at the court are usually about the interpretation of the Constitution and statutes, not about facts. The press is mostly left to provide the basic background of the dispute and then explain the positions of the lawyers on each side. But at its core, this case, as with any about congressional intent, is about knowable facts, not about the lawyers’ views of the law.

King v. Burwell hinges on one poorly worded sentence cited by the plaintiffs in a 961-page law that seems to negate a linchpin of that law — the availability of those subsidies to middle-class families so they can buy health insurance. The question is whether that sentence should somehow outweigh all the other provisions in the law that contradict it. And when the meaning of a federal law ends up being disputed in court because the wording is vague or internally contradictory, the dispute turns on the kinds of facts journalists are used to digging out. That’s because judges are supposed to figure out what the legislators intended the law to mean and to do.

I know what the legislators intended because in researching my book, I interviewed pretty much everyone involved in the conception and writing of the law. Moreover, I did that long before King v. Burwell had become the Obamacare opponents’ favorite new weapon, which means that those opponents had no reason to spin the fairytale that Congress did not intend for those subsidies to go to the millions of Americans signing up on the federally run exchange. At the time, no one had a dog in a fight over congressional intent, because there was no fight.

I also reviewed reams of internal emails and memos generated by congressional staffers working for both Democrats and Republicans. In no document from start to finish, in a legislative process that spanned more than two years, is there even a hint of anything but the unambiguous assumption that the law, whose first section is titled “Quality, Affordable Health Care for All Americans,” would indeed provide these insurance subsidies for all Americans who needed them.

In short, I had a catbird seat for doing exactly that kind of fact-based reporting that anyone judging a case like this — reporters, as well as judges — should do. But I didn’t appreciate it because neither I nor the people I was interviewing had any expectation that this case would become something the Supreme Court would take seriously.

Indeed, when I mentioned the case to several of those sources during the spring and summer of last year, all of them – Democrats and Republicans – did some version of an eye roll. This is why there is only scant mention of the case in my book, the draft of which was completed before the court took the case.

I’ve now gone back and looked at my notes and can report that I interviewed 21 congressional staffers and members last year in my effort to reconstruct the day-by-day narrative of how Obamacare happened. None ever mentioned the possibility that the subsidies did not apply to the states in the federal exchange.

On the contrary, everything they told me — and all of the contemporaneous emails and other internal documents I reviewed — assumed that the federal exchange would simply be a substitute for a state exchange if a state decided not to launch its own, and that the same rules would apply. That is consistent with the instructions Democratic and Republican staff members gave to the Congressional Budget Office when they asked it to “score” (estimate the cost of) various drafts of the law, including the final version.

 

Perhaps most telling was Iowa Republican Senator Charles Grassley’s early take on the suit. Grassley is the Republican most intimately involved with the drafting of the law. Before finally siding with his GOP colleagues and refusing to vote for the bill, he and his staff worked closely with Democrats in the Senate, negotiating provisions and language and even adding several important provisions of their own that made it into the law.

Last June — again, as an afterthought because the suit seemed so unlikely to be taken seriously by any court — I asked Grassley about it as he walked me through the Senate dining room following an interview. At first he did not even know what I was talking about. When I explained the suit to him and asked if it was possible that the law intended to bar subsidies for people on the federal exchange, he still seemed not to understand and said that it made no sense. Put simply, he seemed incredulous. If congressional intent is the issue, someone should have taken Grassley’s deposition.

After I recounted Grassley’s puzzled dismissal of the King suit in a television interview a few weeks ago, Rodney Whitlock, the senator’s healthcare policy director, called me. It was a surprising conversation. He did not deny my account or even that he and his boss thought the subsidies applied to the federal exchange. Rather, he complained that what Republicans intended, and what Grassley in particular intended, “is not the issue. It’s what the Democrats intended that counts, because they wrote the bill. So please stop calling attention to us.”

By all accounts, the single person on the Democratic side most responsible for drafting the actual law is Elizabeth Fowler. She served as healthcare counsel to then-Senator Max Baucus, the Montana Democrat who, in 2010, chaired the Senate Finance Committee. When I first asked Fowler about the lawsuit in May 2014, she, too, had no idea what I was talking about.

In July, after the case had been blessed in a 2-1 vote by two Republican-appointed judges on one appellate court, Fowler told me that, “The judges [on the panel who sided with the plaintiffs] clearly don’t care about congressional intent.”

In my reporting, I found that Fowler was a unique source of bipartisan agreement. She was universally liked and regarded as a straight shooter not only by Democrats, but by Republican staffers and senators as well. “Liz is a terrific person, who helped us all,” Grassley told me.

The Democrats in Congress for whom Fowler worked have repeatedly stated, including in court papers, that they intended exactly what the law plainly says was their intent.

Again, congressional intent is a fact-based inquiry, not a matter of opinion. Given the unambiguous mountain of facts arrayed for the defense (and well-presented in the briefs submitted by the defense side), it is hard enough to see how the lawyers on the plaintiffs’ side could actually believe in their case. Their zeal in wanting to kill Obamacare is acceptable advocacy, I guess.

But if a majority of supposedly objective justices decide to ignore the facts and buy their argument, they will have engaged in a breathtaking act of political activism. For those of us who have always regarded our highest court as a national monument to the rule of law, it will be profoundly depressing.

208 comments

We welcome comments that advance the story through relevant opinion, anecdotes, links and data. If you see a comment that you believe is irrelevant or inappropriate, you can flag it to our editors by using the report abuse links. Views expressed in the comments do not represent those of Reuters. For more information on our comment policy, see http://blogs.reuters.com/fulldisclosure/2010/09/27/toward-a-more-thoughtful-conversation-on-stories/

Your account of why people oppose this law are inaccurate. How were you allowed to review all of those emails? Exaggeration!

Posted by Hunter901 | Report as abusive

This is surprising information but seems very well reported, as is usual for Reuters. I look forward to further reports on how the case develops. Well done.

Posted by jbeech | Report as abusive

Reuters readers read a fairytale by Steven Brill.

Posted by Dumbstruck | Report as abusive

In other words, if the court rules in favour of the plaintiffs his book won’t be worth squat.

Posted by stambo2001 | Report as abusive

Examination of legislative intent is only invoked when a law is on its face ambiguous. While I may agree substantively with Mr. Brill, the court is not free to reinterpret language not ambiguous on its face. I am not familiar enough with the text to have an opinion whether the relevant portion of the text is ambiguous, but the Court is not a place to spin otherwise clear language. If the language is clear, then legislative intent is no more than a lament.

Posted by fdhiii | Report as abusive

Thank you, Mr. Brill!

Posted by jmfree | Report as abusive

This story is called “Commentary.” It is actually provable fiction. Gruber specifically laid out how setting up the exchanges BY STATE would force those that didn’t really want to participate to do so to get the Federal Funds.

Posted by WayneVan | Report as abusive

The president has to enforce the laws that are passes, not the laws someone else wishes had been passed.

Do research. In 2009 when the president wanted a single-payer health system, Republicans filibustered and demanded that the bill have Bob Dole’s health care philosophy and an full does of Republican Romneycare rules.

These Republican additions to the law are what they are complaining about now. In a better government, Congress would fix what is wrong with the American Care Act. But Congress is stuffed with people who want government to fail, who are opposing what is good for America, and the American citizens.

Get the Republicans out of Congress or this stupidity will go on for another decade.

Posted by Rosengj | Report as abusive

He’s right, to regard our courts as a national monument to the rule of law, is about as stupid as regarding that article as a statement of dependability.

Posted by T.L. | Report as abusive

Maybe we should impose a Sarbannes/Oxley-like requirement that under penalties of perjury, our legislators sign a statement that they have read and understand the legislation as part of their voting process. (The statutory language not the legislative history.)

Maybe we’d see a reduction in the quantity of legislation and an increase in the quality.

Posted by RobertMichael | Report as abusive

This article rather deftly sidesteps the facts surrounding Nebraska Sen. Ben Nelson, the Democrat responsible for the insertion of the language in question. And your evidence regarding Grassley is bogus.

Why do I know? Because I spent 5 years in Washington as a reporter. Any honest reporter knows that you don’t spring a question about obscure wording of legislation during a casual conversation, and then present the reply as definitive. As a former working journalist who interviewed plenty of senators in both parties, I loudly call “b.s.” on that particular retroactive “gotcha” tactic.

Oh, and by the way, might I add that, during my time as a reporter, I was a committed Democrat. And I’d voted against Grassley when I lived in Iowa. But, guess what? Time was when reporters prided themselves on putting their opinions and leanings aside, and being srupulously even-handed in treating people and issues. Yeah, who knew?

Steven Brill, I recall your name from somewhere. Maybe you were once a reporter, but to judge from this article you’re just one more flack. I hope you didn’t sell your integrity cheaply.

Posted by Jakesnake | Report as abusive

If, say, Texas (or some collection of red states) was the only state without an exchange, you can bet that the Administration would be interpreting the law the way the challengers do, in order to pressure Republicans into setting up state exchanges…

Posted by kramartini | Report as abusive

Democrats = liars

Posted by retiredsgt | Report as abusive

Hunter901….Be aware that most or many federal documents are public. Might want to review your Civics course. As a reporter or citizen a Freedom of Information Act Request (FOIA) can be submitted and documents shared.

Posted by Bigflip | Report as abusive

“…The pharmaceutical giant that just hired Fowler actively supported the passage of Obamacare through its membership in the Pharmaceutical Researchers and Manufacturers of America (PhRMA) lobby. It’s difficult to find someone who embodies the sleazy, anti-democratic, corporatist revolving door that greases Washington as shamelessly and purely as Liz Fowler…” ~The Guardian Glenn Greenwald

Ain’t that the truth!

Posted by GrimmTale | Report as abusive

The Democrats knew what they were doing when they drafted the bill…just ask Gruber. They tried to force the states into setting up exchanges through basic bribery…set up an exchange, and your residents will get subsidies. When states decided not to play the game, they’re trying to fall back on ‘intent’. The law is plainly written…I’ve never seen so many backpedaling as fast as they can. And Brill is nothing but a leftist hack. That being said, I expect the Supreme Court to uphold this terrible piece of legislation, if recent history is any indication.

Posted by nobama2012 | Report as abusive

Mr. Brill, what is your political affiliation and who did you contribute to in the last election and how much? I think your readers have a right to know in order to judge your objectivity.

Posted by richjacy | Report as abusive

Lol!

Posted by Htos1 | Report as abusive

The real fairytale is the package of lies spun by Jonathan Gruber et. al, relying on the stupidity of the average American voter, to get this rammed through Congress. Pity he was too busy salvaging his worthless reputation to file an amicus brief to that extent.

Posted by AntoniusBlock | Report as abusive

I see all the paid right-wing trolls are swarming to comment. Paid to lie, paid to dissuade people from policies that are beneficial to them.

http://www.alternet.org/story/149197/are _right-wing_libertarian_internet_trolls_ getting_paid_to_dumb_down_online_convers ations

Posted by mcjam69 | Report as abusive

Here come all the right-wing hacks complaining about unfounded journalistic bias because the facts – not just Brill’s findings, but of EVERYONE’S – don’t comport to their wayward ideology. Move on to the next piece of policy you wish to complain about (but have no sufficient answers for); we all know you’re full of s*** here. Heres a topic: climate change is a hoax because its snowing in certain parts of the country…..in winter! Proceed to the name-calling, bad grammar, ALL CAPS RESPONSES, and incoherent diatribes. Ill be on way cashing in on my food stamps with booze and calling up some folks on my obama phone.

Posted by Paulb10486 | Report as abusive

gruber disagrees

progressive wishful thinking
https://www.youtube.com/watch?v=34rttqLh 12U

https://www.youtube.com/watch?v=LbMmWhfZ yEI&list=PLNjtpXOAJhQIXg3v8D-KikEXfbTrpB TuR

Posted by brewmaster95060 | Report as abusive

Along with the human casualties, the U.S. Supreme Court’s prestige as a fair arbiter would also be irrevocably damaged. As New York Times legal correspondent Linda Greenhouse argues, “The Court has permitted itself to be recruited into the front lines of a partisan war. Not only the Affordable Care Act but the Court itself is in peril as a result.”
http://www.nationalmemo.com/be-very-afra id-of-king-v-burwell/

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Your title leads anyone to believe bias in the article and therefore not worthy of reading.

Posted by kevivoe | Report as abusive

# “American healthcare system”
No, there is no American healthcare system. There are healthcare providers on one side, insurers on the other side, and citizens caught in the middle; that is not a “system”, that is a travesty.

Posted by moebadderman | Report as abusive

“I’m a reporter. I hate to take sides.”
Bwahaahaaahaaa!

Where is your interview with Gruber?

Posted by CatHammer | Report as abusive

As stated by another poster here – the only “fairytale” is the one spun by this author. Steven Brill, who has a financial stake in the outcome of the issue he so “unbiased” reported on.

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