"The more media scrutiny this lawsuit receives, the more trumped-up and circus-like it looks."

...................................................................................................................................................................
Republicans struggle to explain their ‘flip-flop’ on anti-Obamacare lawsuit
By Greg Sargent, February 18, 2015

The most important read of the morning is Glenn Kessler’s deep dive into the previous statements of leading GOP lawmakers about the structure and purpose of the Affordable Care act — statements that strongly suggest they only recently came around to the reading of the ACA that is driving the King v. Burwell legal challenge that could do severe damage to the law.

Kessler reports that GOP Senators John Cornyn, John Barrasso, and Orrin Hatch, along with Rep. Paul Ryan, are all previously on record making statements that appear grounded in the assumption that subsidies would be available to people who got health care on the federal exchanges, in addition to state ones. The King lawsuit, of course, alleges that the ACA does not authorize subsidies to all those people, and now, Cornyn, Hatch, and Ryan have signed a brief siding with the challengers. Meanwhile, Barrasso is openly rooting for the Supreme Court to “bring down” the law.

Some of these statements have been previously aired. What’s new here is that these Senators and their spokespeople have now attempted to explain their shift in views. Most of their explanations, Kessler concludes, are pretty weak, and amount to an “unacknowledged flip-flop.”

Perhaps the most interesting one is Senator Cornyn, since he is the lead signatory on the brief siding with the challengers. Cornyn wondered aloud back in February of 2012 how America is “going to be able to afford to provide taxpayer-provided subsidies” for “50 or 60 percent of employees that are now provided with employer coverage.” Cornyn noted that “those individuals will be eligible for taxpayer provided subsidies in the exchanges.” As Kessler notes, he made no distinction between the federal and state exchanges. A Cornyn spokesperson replied that Cornyn was asking a “hypothetical question.”

Kessler concludes this explanation doesn’t add up, in part because the legal theory being used by the challengers had already achieved widespread airing at that point, and Cornyn was not framing a question about whether subsidies would be available. To be fair, the initial version of the IRS rule — which declared subsidies would go to all states, and which is now being challenged — had already been proposed in the summer of 2011, so perhaps Cornyn simply believed the rule would apply (though it wasn’t made official until months later, in the spring of 2012). But another possible explanation is that Cornyn didn’t believe the challengers’ legal theory — at the time, that is.

“Cornyn has perhaps the weakest defense,” Kessler concludes. “His concerns about the budget make little sense if one believes that the citizens in about three-quarters of the states would not qualify for premium subsidies.”

I would only add that Cornyn recently claimed, with apparent glee, that “the Supreme Court is going to render a body blow to Obamacare from which I don’t think it will ever recover.”

The more media scrutiny this lawsuit receives, the more trumped-up and circus-like it looks. And there are still plenty of questions about it that remain unanswered.
...................................................................................................................................................................