Rep. Paul Ryan (R-Wis.) is among numerous Republicans supporting a Supreme Court challenge to the Affordable Care Act. Ryan's past statements are at odds with the lawsuit's central claim. | AP Photo/J. Scott Applewhite
WASHINGTON -- Over the past year, a number of Republican lawmakers have gravitated to the claim that there is a central flaw in President Barack Obama's Affordable Care Act. Jumping aboard a lawsuit that has now made its way to the Supreme Court, they argue that a close reading of the bill prohibits the federal government from giving subsidies to those who purchase health insurance on exchanges that are run by the federal government, of which there are 34.
The question is whether this embrace of the lawsuit represents an epiphany or crass political opportunism. Because not long ago, many of these Republicans were publicly assuming the subsidies they now question were available to everyone, regardless of the exchange on which they shopped.
An August 2013 letter to then-Health and Human Service Secretary Kathleen Sebelius shows how Rep. Paul Ryan (R-Wis.) made this exact shift. Back then, Ryan declared these subsidies would cost taxpayers more than $1 trillion -- an amount only possible if they were available nationally, not just in the 15 state-run exchanges in place at the time.
This acknowledgment of the Affordable Care Act tax credits for low- and middle-income households in every state contradicts a brief Ryan and 14 other GOP lawmakers filed to the Supreme Court last month. That document states, “The plain text of the ACA reflects a specific choice by Congress to make health insurance premium subsidies available only to those who purchase insurance from ‘an Exchange established by the State.’”
In March, the Supreme Court will take up a case called King v. Burwell, which asserts that those words mean subsidies can go only to residents of states that created their own exchanges under the law, and not in states that allowed the federal government to do so. The lawsuit doesn’t stop there, because it also claims Congress intended this to be the case, an argument vehemently disputed by the Obama administration and the congressional Democrats who wrote the law. The high court is expected to rule in June.
Republican lawmakers are jumping aboard the Obamacare lawsuit bandwagon in the meantime. The problem with the mainstream Republican adoption of the claim that Congress meant to deny subsidies to consumers using federally run exchanges is that Republicans didn’t express that view during the congressional debate in 2009 and 2010, nor in the time that followed -- until the chances increased that the suit would succeed.
In the letter Ryan sent to Sebelius when he was Budget Committee chairman in 2013, which was part of a number of documents obtained through a Freedom Of Information Act request to the Department of Health and Human Services, he wrote:
The committee has many questions about how this law is being implemented. Of particular interest is how the federal exchange subsidies, with an estimated gross cost of more than $1 trillion, will be managed, administered, and verified.
Ryan made a similar assumption during a hearing in March 2010, a few days after Obama enacted the Affordable Care Act, Talking Points Memo reported this month. At the time, Ryan described the subsidies as available to “just about everybody in this country, people making less than $100,000.”
Brendan Buck, a spokesman for Ryan, did not say when or why the Ways and Means Committee chairman changed his views on the meaning of the Affordable Care Act. Instead, he noted that the congressman was operating off of CBO numbers when he wrote his August 2013 letter, and questioned why such material was being resurfaced now.
"The increasingly half-baked 'evidence' that defenders of the law are citing is revealing quite a sense of rising panic that Obamacare is in real trouble," said Buck.
While the King lawsuit does, indeed, place Obamacare and millions of health insurance consumers in real trouble, the Republican argument about congressional intent has trouble of its own.
Sen. John Barrasso (R-Wy.) is another of the 15 Republican lawmakers whose brief to the Supreme Court declares subsidies were only meant for state-run exchanges. But in 2011, Barrasso had a different point of view, Salon reported Tuesday.
At a press conference touting legislation that would have allowed states to opt out of Affordable Care Act insurance regulations, Barrasso stated the subsidies in question would be provided no matter what a state did. Taxpayers are “not going to give up that right to have an opportunity to use that money,” he said.
That same year, Rep. Darrell Issa (R-Calif.), who was chairman of the House Oversight and Government Reform Committee, issued a report titled "Uncovering the True Impact of the Obamacare Tax Credits." In the footnotes of that report, he and his staff adopted the argument that Obamacare defenders now use to defend the legality of sending subsidies to all eligible recipients, regardless of what exchange they shop on.
"State health insurance exchanges will be set either by the state or by the federal government if a states refuses to set up its own exchange," the footnote reads. "The exchanges are basically portals where individuals can purchase health insurance. Many individuals who purchase insurance through an exchange will qualify for a tax credit."
Also in 2011, Republicans unanimously supported a bill using subsidy funding to pay for a change in tax law. Doing so explicitly assumed those tax credits were national, as The New Republic reported last week.
An estimated 10 million people would lose their health coverage in absence of the subsidies received by more than 85 percent of exchange enrollees. And the abrupt departure of that many people from the insurance pools in those states would destabilize those markets, jeopardizing coverage for those who could still afford it, and the ability of insurers to continue operating in these states.