Obamacare Challengers' 7 Most Desperate Moves

Opponents of the Affordable Care Act just won’t give up. Whether they’re pushing for a 55th attempt at repeal in Congress or challenging the law piecemeal in court, there’s always something desperate in the works. In their latest crack at it, they’ve concocted a series of lawsuits that rest on a ludicrous legal theory. Basically, they’re looking to four words in a 900-page statute to justify stripping millions of Americans of the financial assistance that makes health care affordable for them under the ACA. Sound ridiculous? Good. It is. The challengers in these lawsuits are churning out desperate ideas as fast as they can be debunked. Here are the 7 most desperate moves we’ve seen in these lawsuits so far:

1. Pretending the ACA consists of only four words.

The ACA's challengers claim that one provision in the law that references financial assistance for people who purchased insurance on an Exchange “established by the State” means that otherwise eligible residents of the 36 states that chose to use federally-facilitated Exchanges can’t receive help paying for health insurance.

Sure, several provisions in the law make clear that subsidies should be available in all 50 states… but let's ignore all that.

Awkward, because even Justice Scalia isn't a fan of this approach. Just three months ago he reaffirmed that the "fundamental canon of statutory construction [is] that the words of a statute must be read in their context, and with a view to their place in the overall statutory scheme." In other words, the golden rule of interpreting statutes is not to take words out of context.

You could take four words out of Moby Dick and try to pass it off as a book about a Sunday afternoon whale-watching cruise, but no one would believe you.

2. Not getting how threats work.

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If no one makes a threat, and no one thinks they’re being threatened, you’re doing it wrong. The ACA’s challengers claim that Congress purposefully limited financial assistance to state-established Exchanges as an incentive for states to set up their own Exchanges. As congressional and state legislators made clear in their “friend of the court” brief, Congress didn’t threaten to withhold subsidies, and states didn’t think subsidies would be withheld.

3. Assuming people don't remember what they were doing five years ago.

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The law’s challengers try to pass off a totally contrary-to-reality version of the ACA's legislative history, which they only baked up in the first place because their textual argument wasn’t going to cut it (see no. 1). Too bad we can’t just ask the authors of the law what they meant. Sigh. …Oh wait—we can, and we did! The members of Congress responsible for drafting the ACA filed a brief in court stating unequivocally that no one thought the law worked the way the Obamacare challengers claim, and they never would have written a law that worked that way.

Judge Harry Edwards of the D.C. Circuit got it right in his Halbig dissent:

“Apparently recognizing the weakness of a claim that rests solely on § 36B, divorced from the rest of the ACA, Appellants attempt to fortify their position with the extraordinary argument that Congress tied the availability of subsidies to the existence of State-established Exchanges to encourage States to establish their own Exchanges. This claim is nonsense, made up out of whole cloth.”

4. Not remembering what they themselves were doing two years ago.

In the constitutional challenge to the law in 2012, the same lawyers who are arguing these cases filed briefs acknowledging that subsidies were available on the federal Exchanges. (They even said that the entire statute could not function as written without the subsidies.) Yet now, they claim that the law clearly bars subsidies for individuals using the federal Exchanges.

5. Trying to make reading comprehension a thing of the past.

Given their apparently willful misunderstanding of the federal rules of appellate procedure—not to mention the basic premise underlying their lawsuit—these guys are clearly not interested in reading for content. Take the issue of whether or not the D.C. Circuit panel’s decision regards a question of “exceptional importance” and should therefore be reheard by the full court en banc. Federal appellate rules clearly say that if a panel decision conflicts with another Circuit Court decision (as the Halbig decision does), it presents a question of “exceptional importance.” Adam White and Jonathan Adler cite exactly these rules, but somehow still say that “the administration’s supporters seem to believe that Halbig has ‘exceptional importance’ because the Affordable Care Act is exceptionally important to them.”

6. Pretending to care about the consequences of their harmful lawsuit in order to pressure the Supreme Court into hearing the case.

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Lead attorney for the challengers Michael Carvin filed a petition asking the Supreme Court to grant cert NOW because of the horrible cloud of uncertainty—*which they created*—over all those poor people who get financial assistance. And yet they oppose en banc review by the D.C. Circuit, which would remove that cloud of uncertainty and the need for the Court to weigh in.

7. The lawsuit itself is the ultimate desperate move.

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Some people just want to kill this law any way they can. Judge Edwards understands that this is a “not-so-veiled attempt to gut [the ACA].” They lost in Congress (54 times!), they lost in the Supreme Court, and they’ve lost with 6 out of 8 judges so far this time around. But hey, why not keep trying, right?