Things You Hear on NPR: Forget about Legislative Intent, Let’s Get Back to Bashing Republicans

March 11, 2015

The Supreme Court last week heard oral arguments in King v. Burwell, in which the plaintiffs argue that under the text of Obamacare, the government can provide subsidies and inflict penalties only on people in states that have set up state-run insurance exchanges.  Here is some of NPR’s coverage of the arguments.

Some of the ways you know that NPR knew they were producing political propaganda, not a news story:

1.  They bring Scott Walker into their arguments about legislative history.

NPR quotes an interested party for the proposition that the judges should look at the legislative history:

Katyal emphasizes that a basic maxim of interpreting statutes is to look at the overall structure and purpose of the act.

(Or, when a legislative body of more than 500 passes a thousand-page bill they haven’t read, there’s no way the court can resolve questions about the meaning of specific wording by resort to the “purpose” of the act.  Maybe the court should stick to reading the actual text of the law—after all, that’s what Congress voted on, not the legislative history.)  NPR continues:

“It’s notable,” he says, “that in all the thousands of pages of briefing that the Affordable Care Act challengers have put together, they can’t find a single member of Congress at any point in the many debates of the Affordable Care Act who believes what these lawyers are saying. Not one.”

Indeed, even Republicans did seem to assume that the subsidies went to everyone who needed them, regardless of where they lived.

Rep. Paul Ryan, the top Republican on the House Budget Committee, said in 2010, “It’s a new and open-ended entitlement that basically says, to just about everybody in this country: If your health care expenses exceed anywhere from 2 to 9.8 percent of your adjusted gross income … don’t worry about it … the government’s going to subsidize the rest.”

Wisconsin Gov. Scott Walker, a leading Republican, also seemed to assume that the subsidies would go to everyone.

“In the end, there’s no real substantive difference between a federal exchange or a state exchange,” Walker once said.

So NPR came up with two examples of “member[s] of Congress” for the legislative history, neither of which has a great quote for NPR’s point (both are consistent with everyone’s simply having assumed that most states would choose to set up state exchanges, in response to exactly this incentive), and one of them was never even a member of Congress!  Scott Walker is, however, “a leading Republican”, and NPR is more interested in trying to find something embarrassing about him than they are in researching any actual legislative history.

2.  They don’t even mention the Jonathan Gruber argument.

If they’re going to quote witnesses beyond just members of Congress, there’s some great material out there for the other point of view, but they managed not to mention it.  Listening to this NPR story, one could be forgiven for getting the impression that there is no evidence to support the other side’s theory about the legislative intent.  If you count the two “members of Congress”, NPR quotes five witnesses for their side of the argument, and quotes only the plaintiffs’ lawyer for his own side.  Yet one of the most powerful witnesses for our side is their own Jonathan Gruber, one of the architects of Obamacare, who explained in 2012 that this provision in the law was very intentional:

That is really the ultimate threat — will people understand that, gee, if your governor doesn’t set up an exchange, you’re losing hundreds of millions of dollars in tax credits to be delivered to your citizens.

(See, e.g., here or here.)  I’m sure NPR would have gotten around to it if they had had room in the story to quote a seventh person.

3.  In case you haven’t gotten the message yet, they close with a heavy-handed emotional appeal.

NPR’s closing argument:

Congressional Republicans . . . some Republican governors . . . .

There is, of course, always political danger in such brinksmanship. Real people suffer the consequences.

Is there an echo in here?  Here’s how the liberal New York Times closed its editorial last week:

The political opponents of Obamacare seem to think this fight is about ideology. What they refuse to acknowledge is the human toll and the economic devastation that destroying the heart of health reform will bring about.

Were they equally concerned about the consequences that Obamacare inflicted on real people, when Obamacare reduced people like me to part-time employment or unemployment?

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4 Responses to “Things You Hear on NPR: Forget about Legislative Intent, Let’s Get Back to Bashing Republicans”

  1. Snoodickle Says:

    I agree that the Gruber quote is very intriguing; he presumably got that notion somewhere – was it the text of the law? But turning to the issue of federalism, the National Review story you quote predictably misses the point.

    The real federalism issue here is that , as Justice Kennedy and Justice Kagan pointed out, if the challengers’ interpretation is adopted, the meaning of the law will amount to unconstitutional coercion of the states. Think about it, would a state really refuse to set up an exchange if there were a legitimate possibility that it would send its insurance market into a catastrophic death spiral?

    Given this serious constitutional question, the doctrine of constitutional avoidance would countenance adopting the defenders’ position if it is in any way plausible – which of course it is. Moreover, as Justice Kagan pointed out, if Congress really intended to coerce the States into setting up exchanges, and thus upset the normal balance of federal-state relations, they would have been unmistakably clear in such intent, and not buried such mechanism in a four word passage ensconced deep within the law.

    I would submit that the National Review article you quote is just as egregious as the NPR segment in its misrepresentation of real issues at play in this case.


    • “four word passage ensconced deep within the law”? I think even NPR keeps saying that it’s six words and appears ten or twenty times in the law. (Anything looks deeply buried when the law is a pile a thousand pages deep…)

      Obviously I disagree with your assessment that the NR editorial is beside the point, but that’s beside the point.

      I think part of the problem with the framework you suggest is that what you imply are differences in kind are actually differences in degree, and it’s arbitrary what degree you consider the cut-off point. How coercive is too coercive? I think the courts should consider the very existence of programs like Medicaid an unwholesome and unconstitutional corruption of our republican form of government (which, I know you know, the Constitution guarantees to every state), but obviously that’s not our jurisprudence. How clear is clear enough? “if Congress really intended to coerce the States into setting up exchanges, and thus upset the normal balance of federal-state relations, they would have been unmistakably clear in such intent”—I think the meaning of the words is plenty clear enough as written; you just don’t like the meaning, so you call it ambiguous.

      • Snoodickle Says:

        I was thinking “established by the State” was the operative language. I never said I could count!

        Justice Kennedy seems to think it is too coercive.

        You won’t like it either if the Court adopts the challengers’ position. Ohio is a federal exchange state, meaning that our insurance markets could fall into chaos.


      • Arguably Obamacare has already thrown a lot of our system into chaos. Arguably Congress will have to resolve some of the chaos with further legislation at some point, regardless of the outcome of this case.


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