The CBO score and the Made-Up Narrative of the ObamaCare Subsidies Case

Two years ago, I posted on this blog that the CBO scoring of Obamacare was central, in the public eye, and intensely scrutinized by all involved with the statute. CBO never assumed in scoring the bill that subsidies would be unavailable on federal exchanges. Justice Scalia and the joint dissent in NFIB v. Sebelius also relied on the CBO score, saying: “By 2019, 20 million of the 24 million people who will obtain insurance through an exchange are expected to receive an average federal subsidy of $6,460 per person”—numbers that only make sense if the federal exchanges are included.  Today,  a Talking Points Memo piece offers even more evidence supporting the argument.  Here is one snippet:

“It definitely didn’t come up. This possibility never crossed anybody’s mind,” David Auerbach, who was a principal analyst for the CBO’s scoring of the ACA, told TPM on Thursday. “If we started to score it that way, they would have known that, and they would have said, ‘Oh, oh my gosh, no, no no,’ and they probably would have clarified the language. It just wasn’t on anybody’s radar at all.”

It remains my view that the text of the ACA, when read not in isolation, but in context–the approach the Court (including the textualists) repeatedly cites as its preferred approach–clearly permits the Government’s interpretation of the subsidies. (If anyone is doubtful, the Court made such a statement as recently as this Term in Utility Air, through Justice Scalia:

“[W]e, and EPA, must do our best, bearing in mind the “‘fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.’” FDA  v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000). As we reiterated the same day we decided Massachusetts, the presumption of consistent usage “‘readily yields’” to context, and a statutory term—even one defined in the statute—“may take on distinct characters from association with distinct statutory objects calling for dif­ferent implementation strategies.”)

But the CBO story offers another datum–along with the testimonials of staffers and reporters that have been pouring out all week–that no one ever assumed the statute said otherwise.  Why is this so important? Remember this is a Chevron case–a case that turns on the doctrine of agency deference.  To win under the doctrine, all the Government has to do is show that its reading of the statute is plausible.  The challengers, on the other hand, have to prove that the statute clearly says what they want it to say and admits of no other interpretation.  To do that, they have to convince the Court their reading of the statutory text is not only plausible but is the only possible reading.  The challengers are now trying to strengthen their case by weaving a narrative that Congress actually intended the result they claim the statute requires.  All of the evidence, textual and otherwise, points the other way.  A major lawsuit, challenging a massive federal statute that already has been upheld once by the Supreme Court and whose repeal has been rejected by Congress more than 40 times, should not be based on a story that is made up.


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