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If you're going to offer anyone deference, Justices of the United States Supreme Court are probably high on the list. For example, in oral arguments last week in the case of King vs. Burwell – the latest case about the Affordable Care Act, known colloquially as "Obamacare" – Justice Antonin Scalia said something that, were I not offering him deference, I'd likely call a lie. With deference, I'd say instead that it must be a faulty memory, perhaps aided by conservative media malpractice.
King v. Burwell is a case about six words, and whether those six words ("an Exchange established by the State") in a subparagraph in a subsection in a subpart in a subtitle of the most significant legislation in a half-century invalidate a major tent pole of the ACA's workability scheme: the expectation that people purchasing a health insurance plan on the federal insurance exchanges are eligible for tax subsidies the same way people buying on individual state exchanges are.
Those six words are, at worst, a minor drafting error corrected when the Internal Revenue Service, as required by the bill, wrote the rules covering who gets subsidies and for how much. At best, the words are meant to be read in the context of the law as a whole, which treats federal exchanges the same as state exchanges for every other purpose.
Not so! says the other side. Those six words are there to force states to set up their own exchanges, since people without subsidies to buy insurance won't, and that would lead to a "death spiral" on the federal exchange for that state – and no one wants that!
Come on. There is no reasonable universe, in this columnist's opinion, where such a major consequence of the law would be so deeply buried instead of front and center. No one who wrote the law believes that's what it says, and none of the states who opted either way, to build their own exchange or not for 2014, the year the exchanges debuted, said at the time their decision was predicated on those six words.
But Scalia worked that angle pretty hard in court last week, and in the process maligned the legislative process that brought the Affordable Care Act to fruition. "This is not the most elegantly drafted statute," he told US Solicitor General Donald Verilli. "It was pushed through on expedited procedures," he went on, "what would be so surprising if, among its other imperfections, there is the imperfection that what the States have to do is not obvious enough?"
This is simply not the real story behind the ACA. Conservatives love to complain that the bill was rushed, passed in the middle of the night without anyone having the time to read it or even figure out what was in it. But the process leading to passage of the ACA was, simply, historically open, transparent, and extended. After more than a year of conversation around health-care reform during the Democratic primary in 2007-08, and much discussion during the general election in 2008, President Obama's signature law went through another whole year of hearings, town hall meetings, legislative drafts and re-drafts, bipartisan amendments, and extended debates in both houses of Congress.
Yet since 2010, when the law finally passed, that has been a primary argument against the Affordable Care Act – that the bill was the result of a rushed legislative process that excluded Republican voices from any say in the bill's final form. From candidates to commentators, that's the story conservatives tell.
Verilli corrected Scalia during oral arguments, more politely than I would have, about the facts. But it is nice to have conservatives on record about this, that bills rushed through against public outcry and with no say from the other side are bad bills, subject to error, and worth fighting tooth and nail against.
By now you probably see where I'm going. Indeed, I wrote something very similar in 2011, when Wisconsin Gov. Scott Walker's signature Act 10 law was up for debate.
And the parallels now with right to work are striking. By the time you read this, Walker will have signed that bill into law.
But the right to work law, like Act 10, doesn't hold up to the scrutiny conservatives would apply were it a Democratic bill. Health-care reform was a major campaign item, something promised by Obama. Walker denied interest in right to work and called it a distraction, and it was never a statewide issue during the 2014 election.
The ACA took almost a year to draft and pass, and passed through normal legislative rules; right to work saw just weeks from introduction to Walker's signature, and was done in an "extraordinary session" to limit debate and opposition. The ACA features more than 160 Republican amendments; every Democratic amendment to right to work was rejected.
The ACA was passed despite protest from the nascent Tea Party, protest that Republicans thought should kill the bill; right to work was passed while protests in the capitol could be heard by the legislators inside the chamber, protests Republicans ignored in order to push it through. The ACA passed with no Republican votes; right to work passed with no Democratic ones.
Maybe it's not fair to compare a president's signature law, many hundreds of pages long, to something like right to work which, as we've established, Walker wanted to avoid at all costs during his state campaign – though he seems happy enough to take credit now, with a national Republican primary audience in his sights.
But we're long past the point of trying to be fair, aren't we? The Republicans want Democrats to govern by a standard they will not hold themselves to, and they will gladly spread a lie so far and wide that even a Supreme Court Justice will repeat it.
What deference do they deserve anymore?