Yesterday I felt horrible, and today I woke up with a fever for the first time in years. So that’s my excuse. I was already sick.
Seriously, I haven’t changed my views 180 degrees since yesterday, but I have changed them about 90 degrees.
1. I still feel the ACA wording was ambiguous. This probably reflects its size, the way it was rushed through after Scott Brown was elected, and the fact that early in the process most people assumed states would set up the exchanges. (This article from 2012 discusses its ambiguity, as well as the intent of the drafters.)
2. I still think the intent was to provide subsidies via the federal exchange.
So why have I somewhat changed my mind? I don’t think I can continue to claim the courts were engaged in their typical overreach. There are too many arguments on both sides. It seems to me now that judges on both sides of the split decision had good arguments.
And commenters raised some issues that I found appealing:
1. I hate ultra-long bills like Sarbanes-Oxley, Dodd-Frank and the ACA. Complexity makes for bad governance. So there is an argument that the Dems are paying the price for their belief in complexity. The bill was so big they were not careful in drafting it. Of course that’s not really reason enough to gut the bill. But it’s an argument I find appealing.
2. Another argument from commenters (and Tyler Cowen and Ross Douthat) is that it makes sense for courts to interpret laws literally, and then the Congress can change the language if there is a problem. Now in this case the peculiarities of America politics makes that unlikely, at least in the near future. But that merely shows the danger of trying to force through major changes in social policy with razor thin margins, and zero support from the other side. (BTW, both parties have become much more extreme in recent years, so both are to “blame.” The GOP probably fell further, but with the new Ryan proposal they show signs of having hit bottom and rebounding, whereas the Dems are still falling. On the other hand if the GOP is serious about impeachment . . . )
3. Look what happens when I try to help a liberal with whom I strongly disagree about everything. He undercuts me with a very weak response to the second set of revelations. (He said “same answer.”) That’s not the answer I would have given in that situation. Do MIT profs ever do soul-searching?
4. Perhaps the Dems are weaker on the time inconsistency front than I am. If I had used subsidies as a club for the states to set up exchanges, I’d sure as hell carry through with the threat. On the other hand this is the administration that drew a “red line” in the sand with Syria and chemical weapons, so who knows? And I’m a bit on the stubborn side.
It’s now clear to me that this is not just another case of judicial overreach, but rather a very complex set of factors that are unlikely to ever again come together in exactly the same way.
I’d like to thanks Megan McArdle for providing me with some useful information.