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Mitch McConnell: We can’t repeal Obamacare, but Supreme Court may ‘take it down’ instead

The current legal challenge that could gut Obamacare subsidies in three dozen states is regularly described by its proponents as an effort to enforce the law as written. As Dave Weigel has noted, from time to time, champions of the lawsuit acknowledge their real goal is to destroy the law by any means necessary, a frank admission of the goals of this particular exercise in right wing legal activism.

But now this link between the lawsuit and the goal of taking down the law has been drawn tightly by none other than the incoming GOP Senate Majority Leader.

In a very candid moment, Mitch McConnell flatly describes this legal challenge as a substitute means through which an end — repeal — will be accomplished that Republicans failed to accomplish through the political and legislative process.

The moment, which was flagged by a Democrat, comes in an interview that McConnell gave to the Wall Street Journal’s Gerald Seib this morning (see second video). Seib notes that some Republicans have advocated for repeal, and asks: “How do you approach the Affordable Care Act now?” McConnell answers (emphasis added):

“It bears the president’s name. The chances of his signing a full repeal are pretty limited. There are parts of it that are extremely toxic with the American people. The elimination of the 40 hour work week. The individual mandate. The medical device tax. The health insurance tax. I think you could anticipate those kinds of things being voted on in the Senate. Such votes have not been allowed in the past.
“Who may ultimately take it down is the Supreme Court of the United States. I mean there’s a very significant case that will be decided before June on the question of whether the language of the law means what the language of the law says, which is that subsidies are only available for states that set up state exchanges. Many states have not. If that were to be the case, I would assume that you could have a mulligan here, a major do-over of the whole thing — that opportunity presented to us by the Supreme Court, as opposed to actually getting the president to sign a full repeal, which is not likely to happen.”

McConnell suggests the new GOP-controlled Senate will vote to repeal parts of the law, but acknowledges legislative repeal is unlikely to succeed, before stating that there is now a real possibility that instead, the Supreme Court will “take it down,” giving “us” the opportunity of a “mulligan” and a “major do-over of the whole thing.” Even if McConnell is simply describing this as the objective outcome that will result from a SCOTUS decision against the law, it represents a noteworthy level of candor.

On the legal argument, McConnell says the “language of the law” unambiguously “says” that “subsidies are only available for states that set up state exchanges.” That claim — that the key phrase “established by the state” means Congress did not extend subsidies to people in the three dozen states on the federal exchange — has already been widely challenged by legal observers. They note that even a purely textual interpretation of the whole law — putting the contested phrase in its broader statutory context — upholds the government’s interpretation of the disputed phrase, and not that of the challengers.

Some, such as Brian Beutler, have argued that read in context, the key phrase unambiguously supports the reading that Congress intended the law to make subsidies available to people in all states. Others have argued that even if the phrase’s meaning in context is merely ambiguous, the court should side with the government.

In this context, McConnell’s new quote takes on particular interest. As law professor Nicholas Bagley notes in his response to the challengers’ claim, even if you grant that the challengers’ reading of the phrase is reasonable, the government’s reading of it in context can also be reasonable. Which presents the court with a challenge, as Bagley notes:

Even if you think [the challengers’] claim is plausible, maybe even attractive, the contrary interpretation offered by the government is at least reasonable. That brings me to the scope of their argument that troubles me the most: their unyielding conviction that they’ve identified the only possible construction of the ACA. Nowhere do they acknowledge that maybe, just maybe, they’re wrong.
That’s because they can’t admit to doubt. Because of the deference extended to agency interpretation, doubt means they lose. But their unwillingness even to acknowledge ambiguity reflects an important difference between legal advocacy and neutral interpretation. To be clear, [the challengers] deserve immense credit for their lawyerly ingenuity: they’ve constructed a facially plausible argument in support of an exceedingly strange interpretation of the ACA. But the courts would violate their obligation of fidelity in statutory construction if they mistook that ingenuity for genuine obeisance to Congressional will. The latest challenge to the ACA is political activism masquerading as statutory restraint.

Asked for comment on McConnell’s latest, Bagley told me:

“McConnell confirms here that the litigation is politics by other means. It sounds like McConnell is treating the Supreme Court as another political institution.”