Key Premise Of Obamacare Lawsuit Contradicted By Email Senate Aide Sent In 2010

The premise of the latest legal attack on Obamacare has always been shaky. An email that a key Senate staffer wrote in January 2010 would appear to make it even shakier. Next month, the Supreme Court will hear oral arguments in King v. Burwell, a case about what the text of the Affordable Care Act actually means. The lawsuit, conceived and promoted by longtime Obamacare critics, alleges that Congress intended to make the availability of the Affordable Care Act’s financial assistance contingent upon the actions of state officials.

To Nicholas Bagley, a University of Michigan law professor who worked on two amicus briefs opposing the lawsuit, that contrast is telling. “[McDonough] knew full well Congress couldn't force the states to participate in Medicaid,” Bagley told me. “What he meant was that the stakes were too high for that to be a realistic option. But the very next thing he says is that opting out of the exchanges was a realistic option. On the plaintiffs' theory, how could that possibly be? Just as no state could have been expected to opt out of Medicaid, so too no state could have been expected to opt out of the exchanges if billions of dollars were on the line.”