We treat it as a given today that denying the scientific consensus on climate change is something close to an orthodoxy in the Republican party. Meanwhile a major faction of the party is similarly opposed to teaching evolutionary theory and the science of natural selection. But this squabbling around the GOP’s new Supreme Court challenge to Obamacare captures a similar but even more striking dimension to the same phenomenon: A comically willful rewriting of history that seems so eagerly, perhaps slavishly embraced that it is not even clear whether the people arguing the latest zig or zag in the party line know it’s nonsense or whether ideological commitment and peer pressure has convinced them that the new marching orders are really the truth.
You likely saw that former Sen. Olympia Snowe now says no one involved in the Obamacare negotiations and drafting ever suggested that subsidies wouldn’t flow to states using the federal exchange. This is obvious – obvious to anyone who followed the evolution of the law at the time. It is confirmed by everyone who was actually involved in drafting the law. To claim otherwise is to operate with the audacity of the cheating husband, caught in the act, who says, “Who are you gonna believe? Me or your lying eyes.”
Again, many of us were there – some literally involved in the negotiations, others following the intricate developments, false starts, revisions and major policy decisions as they happened, either as reporters, or editors or activists and advocates.
To claim otherwise is simply preposterous.
The best argument Republicans have in this most recent and likely last major court challenge to Obamacare is simply the plain text of the law itself. By one approach to constitutional interpretation, if the plain letter of the law is unambiguous, you don’t even get to lawmakers’ intent, legislative history, possible consequences etc. You still have to interpret the single clause or passage in the context of the overall legislation. But that’s the end of the analysis. You don’t need to get to history or intent if the text itself is clear.
The language in the statute is not unambiguous. It certainly does not have to be read in the restrictive sense in which the King v Burwell plaintiffs construe it. But it is certainly one way to interpret it. And that’s their best shot.
The problem is that it’s just psychologically and even jurisprudentially hard to argue that a mammoth piece of legislation should be gutted by the Court because of an editing error. It’s even harder for partisans to get up enough righteous indignation about justice and hyperventilation if they’re going for the gold on the basis of a drafting error. So a false history has to be conjured up to give the whole effort coherence and logic. What’s amazing is how widely and passionately this hokum has been embraced – not just by the Fox News masses who it is meant to service but seemingly even by some of the most high profile Republicans in Washington.
In his piece today Brian Beutler reprints this epic quote from Sen. Orrin Hatch who says yes, absolutely, the idea was definitely to bully the states by denying subsidies to enrollees whose states didn’t set up exchanges. (It’s worth remember that the entire idea of setting up state exchanges at all was a sop to right-leaning members of Congress who wanted a more decentralized, less federal approach.)
Here’s Hatch …
“The Democrats were arguing that the only way to get the states to sign up is to put the pressure on them by making them have to do a state exchange, so it’s kind of disingenuous for them to come in now and say they didn’t mean that. I’m not the only one that knows that. Their attitude was, you’ll never get all the states to sign up if you don’t force them. Yeah, I don’t think there’s any doubt in the Democrats’ minds they wanted to do that because they were afraid the states wouldn’t form their own exchanges. Now they’re trying to say they didn’t say that, but they did.”
That’s a wow version of history.
For present purposes, what is most interesting to me is this question: Does Hatch really believe this? He’s a weird and oldish guy. But does he really believe this? Has he transposed these ex post facto legal arguments back on to his memories of five years ago? Over the years I’ve realized I’m almost never cynical enough in these and various other cases. People just say things all the time they know aren’t true. But what’s really disquieting about this isn’t that Hatch is lying. I suspect he’s really convinced himself this is true or partisan and ideological peer pressure has accomplished something that amounts to the same thing.
After all, a lot of show trial victims had convinced themselves of their own guilt by the time they confessed. An extreme analogy? Maybe. But look at the plain facts of the matter.
