The Republican attorneys general of six states, Oklahoma, Alabama, Georgia, Nebraska, South Carolina and West Virginia, all signed a brief asking the Supreme Court to gut the Affordable Care Act. Yet one of the central claims in this brief — a claim that cuts to the heart of whether the Supreme Court should shred much of Obamacare or leave it intact — is at odds with a pile of evidence to the contrary. This evidence includes explicitly contradictory statements from the Republican governors of several states, including three of the states represented by these six attorneys general. And the six attorneys general were unable to muster any contrary evidence that supports their central claim.
This weakness in their case is unlikely to be unnoticed by the justices, however, as a brief filed Wednesday by a much larger group of state officials rounds up much of the considerable evidence undercutting the six Republican attorneys general’s claim.
To explain, the Affordable Care Act explicitly says that states should have “flexibility” to decide whether they want to operate health exchanges where their residents can buy health insurance, or whether the federal government should operate an exchange for them. Nevertheless, a lawsuit called King v. Burwell alleges that the residents of states who chose the second option lose access to tax credits intended to help them pay for insurance. If this lawsuit prevails, 13 million people, many of them children, could become uninsured.
To prevail, however, the plaintiffs in King must do more than simply show that they have discovered the best way to read Obamacare’s text. Under the Supreme Court’s decision in Pennhurst State School and Hospital v. Halderman, a state cannot be bound by an alleged condition tucked into a federal grant program “if a State is unaware of the conditions or is unable to ascertain what is expected of it.” Rather, when Congress says that it will only pay out money if a state takes a particular action, the Supreme Court insists “that Congress speak with a clear voice.” Thus, if there is uncertainty about how to read the law, that uncertainty must be resolved against the plaintiffs’ reading and in favor of the view that the law does not make tax credits conditional upon anything.