NRO Pushes For Partisan Lawsuits To Block Americans From Affordable Insurance

National Review Online is hyping a partisan lawsuit aimed at obstructing the ability of working Americans to obtain health insurance under the Affordable Care Act (ACA) as one that Republican governors should be “especially eager” to join.

The NRO applauded the Oklahoma attorney general for filing a lawsuit challenging the federal government's authority to offer tax credits in the new health insurance Exchanges set to open on October 1, blasting the “lawless” fashion in which the Obama administration is implementing the ACA. From Ramesh Ponnuru's September 25 column:

The attorney general of Oklahoma has filed a lawsuit that, if successful, would cripple Obamacare by challenging the lawless way the Obama administration is implementing it. (Implementing it lawfully, that is, would cripple it.) Most states have not created exchanges, and in those states the law as written does not authorize the administration to offer tax credits-and, because of that, limits its ability to impose its penalties on employers and individuals. As far as I can tell, there would be no downside for conservative attorneys general to launch their own lawsuits-or for Republican politicians at the state and federal level to support them, whether by filing briefs or speaking on their behalf.


I'm persuaded that the merits of the case are on the side of Oklahoma. I suspect, though, that courts will have an easier time seeing it that way if politicians help to create a sense that it is a respectable position and not something coming out of left field.

Though NRO is “persuaded” that Oklahoma has a winning case in its goal of denying affordable health insurance to low- and moderate-income people, it appears to be only one of a few. The legal argument Oklahoma Attorney General Scott Pruitt is making is an extremely strained reading of what is, at worst, an unintended ambiguity in the ACA. Pruitt is essentially arguing that, if a state refuses to establish its own exchange, the federal government is not legally permitted to provide crucial tax subsidies to consumers attempting to buy insurance through the default federal exchange instead. The Center for Budget and Policy Priorities notes that this counterintuitive reading of the law is clearly incorrect -- participants must be eligible for tax credits regardless of whether they obtain insurance through a state-run or federally-run exchange. The affordable care law is designed to make the federal exchanges affordable.

Unsurprisingly, health experts, legal analysts, and the drafters of the law concur -- federal exchanges without tax credits for working families was never intended.

This argument of right-wing media to the contrary, while novel, is not nearly as clear a victory as NRO suggests. It also wasn't Pruitt's idea. The legal claim at the heart of the lawsuit was crafted by two conservative legal scholars and anti-Obamacare advocates, one of whom is director of health policy at the Cato Institute and the other, an NRO contributing editor. The lawsuit relies on a questionable reading of the health care reform law that the NRO calls "ingenious," but constitutional law professor and former Department of Justice top official Samuel Bagenstos calls "deeply flawed":

The IRS's interpretation of the ACA to extend premium subsidies to participants in both state- and federally-operated exchanges thus seems to me not merely a permissible one but also the most plausible reading of the statutory text. Nor is there any reason to think that Congress would have intended to treat participants in state- and federally-operated exchanges differently for purposes of obtaining the subsidies. In both state- and federally-operated exchanges, the subsidies serve the same crucial role in achieving the statute's goal of expanded, affordable health coverage. If you take the subsidies away from participants in either sort of exchange, the law's protections are likely to unravel in the same way.


Whatever its value to conservative activists and those who wish to relitigate NFIB [the Supreme Court case that found the ACA constitutional] and the election, the rearguard effort to undermine Obamacare is deeply flawed as a matter of law.

This isn't the first lawsuit to be brought in the conservative fight against the ACA, but Pruitt's is a cynical maneuver that targets some of the most vulnerable members of working America. Without access to the tax credits, low- and moderate-income Americans who need health insurance will almost certainly be unable to afford it.

That's quite a heartless political platform NRO is pushing as one with “no downside for conservative attorneys general.” 

Photo by Flickr user Will O'Neill