The renewed prospect of a crippling legal defeat for the Affordable Care Act has put a little bounce in the step of your average conservative. National Review, the Wall Street Journal editorial board – they’re all exuding confidence that the Halbig case, which challenges the legality of healthcare subsidies provided through Healthcare.gov, will successfully blow a huge hole in Obamacare because, they argue, the facts and the history surrounding the case are on their side. And there’s a good reason the conservative version of Obamacare's history so neatly conforms to their arguments: They’re just making it up and rewriting it as they go.
The argument put forward in Halbig is that the text of the Affordable Care Act was written in such a way that only consumers who purchased insurance through exchanges set up by the states would be eligible for tax credits, while consumers who purchased coverage on the federal marketplace would receive nothing. This was done intentionally, the argument goes, so as to incentivize states to actually build their own exchanges and not rely on the federal government. Supporters of the ACA, and a number of journalists who covered its drafting and implementation, say that this is ridiculous – no one ever discussed this possibility during the drafting process, and the Halbig plaintiffs are trying to exploit a drafting error.
The New Republic’s Brian Beutler put together a great piece documenting all the conservative reporters and pundits who (along with everyone else) had no inkling of the Halbig argument during the ACA fight back in 2009-2010, but are now espousing the obvious, plain-as-day truth that ACA subsidies were always meant to be for state exchanges only. “This was the conventional liberal wisdom until this year when it suddenly became legally and politically inconvenient for the Administration to admit it,” the Wall Street Journal editorial board declared in a bold retconning of the ACA’s formative years.
The Federalist was also sure on the matter. “If fines for mandate non-compliance were Obamacare’s stick, the subsidies for state exchange health plans were the carrot,” they wrote, referring to a “carrot” whose sweetness and allure were so obvious that no one even needed to mention that it existed.
This is how Obamacare opposition has to work. Arguing against a program that is successfully lowering healthcare costs and uninsurance rates is a tricky business, and you have to get creative in order to make it look like you’re not actually cheering for millions of people to lose their health coverage. It’s not enough for the law to merely have a few bugs; its problems have to be rooted in malicious intent.
And that gets us to this column by Noemie Emery for the Washington Examiner, which makes the case that the Affordable Care Act’s problems stem from President Obama’s choice to force the bill through Congress without ever once – not once! – trying to secure bipartisan support. “While Lyndon Johnson and Franklin Roosevelt went out of their way to ensure wide and bipartisan backing for the Civil Rights Act and for Social Security, Obama disdained such undignified measures,” she writes.
Such disdain! Here’s her retelling of the ACA debate in Congress:
[Scott] Brown presented Obama with the fork in the road of his lifetime, and, unlike Yogi Berra, he could only pick one. One led to a compromise in which he scaled back his bill, tailored it so he could win some Republicans, and had a small, solid win upon which to build later. The other was to spit in the face of the voters, ram the Senate bill back through the House in its unvarnished version, and present the whole mess to a still seething public as a personal triumph of will.
He picked the second option, and has never recovered: the bill that emerged was filled with perverse incentives and contradictions that made it nearly unworkable and provided material for numerous lawsuits. And the Republicans, convinced he had stiffed not only them but the moral foundations of orderly government, decided to treat him in kind. His life (and ours) would be different (and better) had he picked option one and had a more normal presidency, but that would have offended his illusions of grandeur. Brown gave him the chance to indulge his worst instincts. He did.
This is a common conservative trope: Obama “rammed” the ACA down America’s gullet without ever consulting the other side for input. Is that how it really went down? Well, here’s a selection of headlines from 2009-2010, before the ACA passed and was signed into law.
Obama tries to sway GOP in favor of health care – Politico, 5/18/2009
Obama Reaches Out to Republicans on Health Care, but Bipartisan Bill Looking Unlikely – Fox News, 7/18/2009
Obama offers compromises to get health care bill passed – McClatchy, 9/9/2009
Obama Continues Policy Outreach to Republicans – New York Times, 2/2/2010
Obama invites Republicans to summit on health care – Washington Post, 2/8/2010
Obama Unveils Compromise Health Care Deal – NPR, 2/22/2010
GOP rejects Obama's compromise offer on health bill – USA Today, 3/3/2010
It got to the point that Obama was compromising so much on health reform that liberals started attacking the White House for giving away too much in exchange for nothing. The problem wasn’t that Obama wasn’t reaching out to the GOP, it was that Republicans had decided on literally the first day of Obama’s presidency that they weren’t going to cooperate on anything. Period.
But the story of an intransigent GOP giving up their chance to put their own stamp on the health law doesn’t jibe with the perception of Obama as a tyrannical despot who imposes his will on the country, heedless of consequence or opposition. And so history falls victim to some aggressive conservative revisionism.