If Congress intended to threaten states with the loss of subsidies, why were so many government officials — including many Republicans in Congress and even officials in the states themselves — entirely unaware that any such threat existed, for many, many months after the law passed, at the very moment when those state officials were grappling intensely with the implications of the law for them?The obvious rejoinder to this is, because nobody reads the damned bills. This is a convenient and bogus excuse for what appears entirely to be either bad drafting, or malicious drafting; the Jonathan Gruber videos make it clear it was the latter. The depressing part, of course, is this:
This week, a number of states will file a brief siding with the government, arguing that nothing in the ACA indicated opting for the federal exchange would cost them subsidies. They will argue — as in a similar, previous brief — that the challengers’ interpretation raises serious constitutional questions: The states were never given clear warning that the failure to set up exchanges could bring them serious harm, and thus the Supreme Court should opt for the Constitutional interpretation — the government’s — when that option exists.That many of these are Republican-majority states should call into question a lot of the assumptions about that party's bona fides in the small-government department, but no matter.
To this argument, the challengers respond that of course the states didn’t think they’d lose subsidies, because the IRS rule — first proposed in late summer of 2011 and made official in the spring of 2012 — told them so, a key reason many states declined to set up exchanges. Thus, the challengers argue, if invalidating the IRS rule now would hurt millions in these states, that’s the fault of the IRS’s original act of lawlessness, i.e., departing from the ACA’s plain text to make subsidies available in them.Well, duh.
... [L]aw professor Laurence Tribe suggests, that the Justices could conclude this case is about more than statutory draftsmanship, and see at stake momentous questions about the relationship between the federal government and the states.Tribe supports very expansive readings of law, which is to say, he is an enemy of textualism. King is about the rule of law in no small way; if it fails, the law is whatever the mandarins say on a given day. Somewhere in the room full of shit is a pony, they're convinced, and will go to their graves believing.