Okay, so I am partially ignoring my own advice regarding the Halbig/PPACA debate. Yes, I said that we should not get distracted by side-show arguments like what some guy said on video two years ago. But I also said that if we’re going to get the better of this argument, we actually need to engage with the claims the other side is making.
Enter this morning’s article on Talking Points Memo: “BOOM: The Historic Proof Obamacare Foes Are Dead Wrong on Subsidies.” Perhaps this CBO-based argument is a bit of a side-show, or perhaps not. But either way, it’s a great example of a supposed counterargument that wholly misses the point of the conservatives’ legal claims and is therefore wholly ineffective at actually advancing the liberal case.
The TPM article claims to have iron-clad proof that the CBO—all-powerful oracle of everything PPACA-related—totally understood “an Exchange established by the State” to mean any exchange regardless of its provenance. How can we be so sure of that? Because:
Congress surely would have noticed if the CBO ever modeled the law with the assumption that some states wouldn’t have access to the subsidies because they were using the federal exchange.
[T]he CBO never did one thing: It never considered that subsidies would be unavailable in some states if they didn’t set up an exchange, as Auerbach told TPM this week. In all its iterations of the law, the idea that the subsidies would be available nationwide permeated all of them.
And those are great arguments! They certainly support the liberal narrative that everyone understood the subsidies to be available on both state and federal exchanges.
One problem: The supposed “BOOM” facts also support the conservatives’ competing narrative. Conservatives contend that the drafters, and the press, and Congress, and the CBO (i.e., everyone) assumed that the PPACA’s threat of “build these exchanges or else you don’t get subsidies” was so strong, that every state would create an exchange. There would be no need for the federal fallback to actually provide anything. In that world, the CBO could assume that “the subsidies would be available nationwide.” So the TPM article does no damage to the conservatives’ position.
In other words, it’s not enough of a counterargument to say “Look at how well these facts fit into my narrative of the events!” An effective counterargument must say “Look at how these facts do not fit into my opponents’ narrative.” The TPM “BOOM” fails in this regard.
So what would an actual counterargument on this point look like, if we actually wanted to engage with the conservatives on the CBO budgeting point? Well, one of their main points—repeated constantly—is that we know the CBO assumed states would create all the exchanges because the CBO allocated zero funds to the creation of a federal exchange. Accordingly, the CBO assumed everyone would get subsidies under state exchanges because it assumed there would be no federal exchanges.
An effective counterargument on the CBO point must therefore address that core assumption. Did the CBO really assume that the federal government would not operate exchanges? Because if we could show that the CBO did contemplate federally run exchanges, and that regardless the CBO assumed that everyone would be eligible for subsidies regardless, then I think we may have something!
So what do the conservatives point to as evidence that the CBO never contemplated federally operated exchanges? I’m certainly no expert on the PPACA debates or the merits of this litigation, but looking at the Adler/Cannon article (the ur-text the Halbig case) it appears the main support for this claim is a 2010 letter from the Director of the CBO, a Cato Institute blog post by Cannon himself, and a Politico article or two.
Can we do better? I’m not sure. Confession: I’ve never read a full CBO report and I’m not familiar with the details of these sorts of documents. But I looked through the March 20, 2010 CBO estimate of the spending effects of the Reconciliation Act of 2010. Again, I’m veering out of my lane here, but what to make of this statement in the report?
A few billion here and a few billion there seems to be about right for how much the federal government would need to operate some exchanges.
Again, these clips from the CBO report may be totally useless. But my main point is this: if we want to actually convince anyone on this Halbig/PPACA point, we need to do more than show that our narrative fits with the facts; we need to show that their narrative does not. And to do that, we’ll need to undermine the core assumptions of their arguments. Showing that the CBO assumed everyone would be eligible for a subsidy just doesn’t do that.
Update August 2: If you’ve been sent here by Instapundit or Redstate, and you’re just reading this one post at Ziffblog, you might think that the CBO analysis is some sort of critical issue in this litigation. It’s not. As I’ve argued here, the most effective arguments are likely to be based on the text and context of the statute. And to make those arguments effectively, we on the left need to engage with the textual and contextual arguments advanced by the challengers.
The TPM “BOOM” post aside, there are plenty of folks on the left making these arguments. It’s not like we don’t have good textual and contextual arguments on the left! For one, read the Court of Appeals decision in King v. Burwell starting on page 15. And when you’re done, head on over to the Incidental Economist to read Nicholas Bagley’s multiple posts on the subject.
The statutory text and the legislative history is a bit of a mess with the ACA. So this is a tough case for both sides. More important than any side issue about the CBO, the critical point here is that folks on the left and the right do themselves a disservice by thinking the answer is obvious or that this case is easy.
On October 30, I was invited to participate in a Cato Institute panel discussion on Halbig, King, and related challenges to the Affordable Care Act. In the wake of the conference, I’ve written a few posts based on the panel discussion. If you’d like to watch the entire law-focused panel, I’ve created a C-SPAN clip here. My thoughts based on the conference are at Part I (Isolationism), Part II (Textualism), Part III (The Whole-Text Canon), Part IV (Halbig’s “Two Exchanges” Problem), and Part V (Creeping Constitutionalism).