Sen. Orrin Hatch (R-UT) is one of six Republican senators who joined an amicus brief asking the Supreme Court to gut one of the core provisions of the Affordable Care Act. Yet the central claim of that brief — and, indeed, of the entire lawsuit — was rejected during the debate over the law by none other than Sen. Orrin Hatch.
The Affordable Care Act gives states a choice. They can either set up their own health exchanges where individuals may buy subsidized health plans, or they can elect to have the federal government set up such an exchange for them. Individuals who purchase insurance on an exchange may receive tax credits to help them pay for that insurance if they qualify on the basis of income.
In his brief, which was filed in a lawsuit called King v. Burwell, Hatch claims that the law “provides that premium subsidies are available only through an exchange established by a State” — i.e. not in an exchange that is operated by the federal government. If Hatch, and the plaintiffs in King who make an identical claim, convince five justices to adopt this view, 8 million or more people are expected to lose their health insurance. Thousands are likely to die.
Yet, in January of 2010 — long before the King litigation made it advantageous for Republicans to claim that Obamacare treats federal and state exchanges differently — Hatch expressed the opposite view from the one he presents in his brief. Back in 2010, Hatch co-authored a Wall Street Journal op-ed laying out several reasons why he believes that the law is unconstitutional. In the process of making this argument, however, he directly contradicts the central legal claim underlying King:
A third constitutional defect in this ObamaCare legislation is its command that states establish such things as benefit exchanges, which will require state legislation and regulations. This is not a condition for receiving federal funds, which would still leave some kind of choice to the states. No, this legislation requires states to establish these exchanges or says that the Secretary of Health and Human Services will step in and do it for them. It renders states little more than subdivisions of the federal government.
Hatch is incorrect that he has found a “constitutional defect” in the Affordable Care Act. Although the Supreme Court held in New York v. United States and Printz v. United States that “the Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States” — and thus a federal law may not require a state to take a particular action — that’s not what Obamacare does. To the contrary, as Hatch acknowledges, the law gives states an option to either set up a health exchange or allow the “Secretary of Health and Human Services” to set up an exchange for their residents. That is a choice, not a command, and giving states choices is entirely constitutional.
Nevertheless, Hatch does make an important claim about the law in his WSJ op-ed. A state’s choice to set up and operate its own exchange “is not a condition for receiving federal funds.” That is the Obama Administration’s position in King v. Burwell. It is also the correct position.
As a legal matter, Hatch’s statement has less significance than similar statements by Republican Governors Scott Walker (R-WI), Bob McDonnell (R-VA) and Dave Heineman (R-NE), all of whom have also contradicted the central claim underlying the King litigation. The Supreme Court’s decision in Arlington Central School District v. Murphy gives special significance to statements by state officials who are in the process of deciding whether to take a particular action that allegedly triggers the payment of federal funds.
Nevertheless, Hatch’s statement is significant for two reasons. The first is that he made it in the context of an op-ed whose entire purpose was to lay out the case for why Obamacare should be destroyed by the courts. And yet, even when he was engaged in this very specific task, he didn’t just fail to notice what he now claims — that the law itself gives each state the power to destroy much of the law within their own borders — he directly contracted his own argument in his King brief.
The second reason is that, under the Supreme Court’s decision in Chevron v. Natural Resources Defense Council, courts owe extraordinary deference to federal agencies’ construction of a statute unless that construction defies the law’s unambiguous text. It is hard to believe that the law unambiguously denies tax credits to people in many states when four staunch enemies of the law — Hatch, Walker, McDonnell and Heineman — all shared Barack Obama’s interpretation of Obamacare.