Obamacare proponents are eagerly touting a new study (of sorts) from a professor at Harvard’s Kennedy School that ostensibly suggests Congress had to have written Obamacare to provide subsidies to federal and state-based exchanges, as the Obama administration maintains in the King v. Burwell case that will go before the Supreme Court this spring.
Their new piece of evidence: The Congressional Budget Office turned out 68 studies of the law, by the Harvard scholar’s count, and all 68 of them seem to have assumed that people in every state would have access to subsidies for Obamacare plans. The plaintiffs in King v. Burwell, led by scholars Michael Cannon and Jonathan Adler, say the law only provides those subsidies on exchanges that states established.
The new Harvard paper is supposed to help make the Obama administration’s case in a couple ways: Congress tells the CBO what to do, so if they didn’t ask the CBO to assess the possibility that subsidies would not be provided, surely they didn’t intend it. And, further, Congress asks the CBO to assess a whole range of scenarios for laws it passes, so it’s just inconceivable that the law says what Cannon and Adler argue it does.
I see a number of problems with this: First of all, the 68 number is meaningless. It’s like saying Congress could not conceive of another way of budgeting besides baseline budgeting because all the CBO puts out is baseline budgets. That was just the assumption the CBO picked or was instructed to pick — every state is getting subsidies — and they stick with their assumptions. In fact, as Michael Cannon points out, the Harvard study includes a score of an Obamacare-related bill, one that came out of the Senate HELP Committee, that clearly withheld subsidies under certain circumstances. And yet the CBO just stuck by the assumption that all of the states would get subsidies anyway, because said circumstances were still kind of unlikely — even though the bill they were scoring clearly made it possible that some states wouldn’t. (Read Cannon’s more lucid post on this issue here.)
The fact that the CBO never scored the scenario in which some states don’t get subsidies under the ACA as passed doesn’t mean no one in Congress intended it or considered it a possibility. So far as I know, the CBO never scored the possibility that any state would refuse Obamacare’s Medicaid expansion. That was thought implausible when the law was passed, since refusing the expansion would cause a state a huge amount of money, but it became a real possibility as soon as suits were filed in 2010 against the expansion and it became possible that the Supreme Court would overturn or change that part of the law. So the CBO naturally didn’t score the scenario before the law was passed, but Congress didn’t get them to score it when it became a real possibility, either.
The CBO has limited resources and Congress doesn’t ask them every question to which they might need an answer. Of course, if it were the clear intent of Congress, or a big chunk of Congress, that some states wouldn’t get Obamacare subsidies, yes, they probably would have gotten the CBO to assess that. The members and staff involved in drafting the ACA have repeatedly said they didn’t intend to exclude some states from subsidies, and the Harvard study just reflects that they didn’t indicate otherwise when setting out guidelines for the CBO.
Here’s the thing: The executive branch is not the the CBO. It doesn’t do what Congress asks in letters or says in hearings. It does what Congress writes in law — and that is the question in King v. Burwell. I don’t know this case well enough to venture which side has the better argument. Legislative intent, for which the CBO’s actions are some fourth-hand piece of evidence, is by most lights helpful in answering that question. But it is not the whole answer by any account.