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Dylan Scott

Dylan Scott is a reporter for Talking Points Memo. He previously reported for Governing magazine in Washington, D.C., and the Las Vegas Sun. His work has been recognized with a 2013 American Society of Business Publication Editors award for Best Feature Series and a 2010 Associated Press Society of Ohio award for Best Investigative Reporting. He can be reached at dylan@talkingpointsmemo.com.

Articles by Dylan

The story of whether Congress ever intended to limit Obamacare subsidies to state-based exchanges begins and ends with the Congressional Budget Office. And what it reveals about the latest legal threat to Obamacare dramatically undercuts the arguments against the law.

No one person or institution was more central to the debate over Obamacare than the CBO. Every tweak to the law was funneled through the accounting brains of the non-partisan congressional scorekeeper to determine how much it would cost. Passage of the entire law hinged on its reports. Votes were delayed until CBO could finish its scoring. Specific provisions lived or died by its decrees. It is safe to say that the health care reform law we have today is in large part the result of the CBO's work.

But like everybody else on Capitol Hill in 2009 and 2010, from legislators to the journalists who covered them, the CBO's quants never even considered the scenario that Obamacare faces today. A federal appeals court has ruled in Halbig v. Burwell that the law's crucial subsidies are not available on the federal insurance exchange, HealthCare.gov, putting coverage for nearly 5 million people in 36 states at risk. That outcome, as bad as it would be for the uninsured, would dramatically lower the cost of Obamacare -- but the CBO never entertained that possibility for the same reason no one else did: It was not how the law was supposed to work.

Remember: Billions of dollars were at stake and everybody was watching. If the costs of Obamacare subsidies could shift by billions of dollars depending on whether a state built its own exchange or instead used the federal exchange, the CBO would have been the one to know about it. And you can bet that the nervous Obama White House, wavering Democrats, and eager-to-pounce Republicans would have responded if the CBO had interpreted any provision of the bill as putting subsidies at risk to state decision-making and put a figure on the financial fallout of that possible scenario. But that alternative picture of the law's costs was never created because nobody at the time understood the law to work that way.

Many of the journalists who followed the debate have retraced their steps, Jonathan Cohn of The New Republic and Sarah Kliff of Vox to name just two, arguing that their experiences, particularly talking with members and their staff during the legislative debate, shows that this legal challenge has no basis in reality and history. But it's even more than that. Not only did the legislators themselves never intend to cut out subsidies for the federal exchange, the CBO, that all-important arbiter of the law's costs, never once factored it into its analyses.

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Opponents of Obamacare who lost their legal case over federal subsidies last week are now appealing directly to the Supreme Court, CNBC reported, but it is not clear whether the Supreme Court will take the case.

The plaintiffs in King v. Burwell, who lost when a three-judge panel of the U.S. Fourth Circuit Court of Appeals upheld the subsidies on the federal Obamacare exchange, petitioned the Supreme Court on Thursday to hear their case, rather than seeking a review from the entire 4th Circuit Court. The 4th Circuit, once the most conservative federal appellate court, now has a majority of judges appointed by Democratic presidents.

The lawyers noted that after last week's ruling on the case, which came the same day that another federal appeals court ruled that the subsidies were not legal, millions of people "have no idea if they may rely on the IRS’s promise to subsidize their health coverage."

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Hospitals continue to report a significant drop in their number of uninsured patients as Obamacare coverage takes full effect, boosting their bottom lines, Bloomberg News reported Wednesday.

Hospital Corporation of America, the biggest for-profit hospital network in the country, reported a 6.6 percent decrease in uninsured patients across its 165 hospitals, according to Bloomberg. And in the four states where HCA operates that expanded Medicaid, the drop was 48 percent.

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Nobody who watched the genesis of Obamacare could have conceived that we would get to this point. When a federal appeals court ruled last week that the law's subsidies were not available in the 36 states that used HealthCare.gov this year, it was the culmination of a unexpectedly turbulent legislative process and five ensuing years of willful Republican obstructionism that puts health coverage for nearly 5 million people at risk.

Separate state and federal exchanges were never supposed to exist. A national exchange, a more fully formed HealthCare.gov, if you will, was preferred by House Democrats and the White House. But unforeseen political changes forced Congress and the president to accept state exchanges with a federal backstop.

But then nobody really believed that states would chose not to set up their own exchanges. Until, fueled by the conservative legal challenges that they hoped would undo Obamacare as a whole as well as the politically motivated defiance of Republican governors, a substantial majority of states defaulted to the federal exchange.

Then enterprising opponents of the law discovered the language in one provision of the ACA that is now at the heart of their current legal challenge. They're arguing Congress didn't actually intend for subsidies to go through a federal exchange, even though a fully federal exchange is originally what many members and the White House wanted. Meanwhile, the law's defenders, as well as many journalists who covered its passage like Vox's Sarah Kliff and The New Republic's Brian Beutler, are being confronted with a scenario that they never could have anticipated after years of covering the law's drafting and implementation. It seems simply unthinkable to most of those who have tracked the law closely. But here we are.

This is how it happened.

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Base Connect already has a longstanding reputation for raising big dollars for congressional candidates with little chance to win and then keeping most of the money, as TPM has reported before. But Fox 2 Detroit discovered a new twist in a report last week: Now the firm seems to be fundraising for candidates who aren't even running.

It is the same model, just extended now to non-existent candidates, Fox 2 reported. In the past, Base Connect would bring in six figures sums and then most of that money would be paid back to the firm. TPM recounted in 2010 one instance where the group raised $895,000 for a House candidate in Pennsylvania and the campaign then paid Base Connect and associated groups $719,000 of it.

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A federal appeals court ruled on Friday that a Florida law that discourages physicians from asking patients about guns is constitutional, despite doctor warnings that such questions are vital to their work.

The 11th U.S. Circuit Court of Appeals overturned a lower court decision that invalidated the 2011 law, advocated by guns rights groups. The law says that "unless information is relevant to patient's medical care or safety or safety of others, inquiries regarding firearm ownership or possession should not be made." It allows for disciplinary action against doctors who violate it.

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Some states are publicly clarifying that they consider their health insurance marketplace created under Obamacare to be state-based, according to the Wall Street Journal.

That would prevent their residents from losing their tax credits under the law if the Supreme Court were to decide that tax credits were not available through the federal marketplace, HealthCare.gov. Two federal appeals court ruled differently on the issue last week -- one upheld the subsidies; the other struck them down -- and the issue could be heading to the high court.

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Jonathan Gruber, an MIT professor and one of the top outside experts who helped draft Obamacare, caused quite a stir last week when a video surfaced in which he appeared to take the same stance as the law's opponents on a key issue currently before the courts.

In the video, which was originally shot in January 2012, and in an audio tape from a separate event that same year, Gruber seemed to endorse the view that the law's tax credits would not be available to Americans shopping on HealthCare.gov, the federal health insurance exchange. The site has been the fallback option for the 36 states that don't set up their own.

The fervor was so great that White House Press Secretary Josh Earnest was asked about Gruber's video at Friday's press briefing. He said there was "ample evidence ... that (Gruber) supports the administration's view."

And that appears to be true. In numerous other occasions, Gruber adopted the administration's reading of the law. It took place in both his own analysis during Obamacare's development and then again in a court brief filed to support the White House's argument in the current lawsuit. It was also apparent in several other public statements.

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