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Morning Plum: Republicans struggle to explain their ‘flip-flop’ on anti-Obamacare lawsuit

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The most important read of the morning is Glenn Kessler’s deep dive into the previous statements of leading GOP lawmakers about the structure and purpose of the Affordable Care act — statements that strongly suggest they only recently came around to the reading of the ACA that is driving the King v. Burwell legal challenge that could do severe damage to the law.

Kessler reports that GOP Senators John Cornyn, John Barrasso, and Orrin Hatch, along with Rep. Paul Ryan, are all previously on record making statements that appear grounded in the assumption that subsidies would be available to people who got health care on the federal exchanges, in addition to state ones. The King lawsuit, of course, alleges that the ACA does not authorize subsidies to all those people, and now, Cornyn, Hatch, and Ryan have signed a brief siding with the challengers. Meanwhile, Barrasso is openly rooting for the Supreme Court to “bring down” the law.

Some of these statements have been previously aired. What’s new here is that these Senators and their spokespeople have now attempted to explain their shift in views. Most of their explanations, Kessler concludes, are pretty weak, and amount to an “unacknowledged flip-flop.”

Perhaps the most interesting one is Senator Cornyn, since he is the lead signatory on the brief siding with the challengers. Cornyn wondered aloud back in February of 2012 how America is “going to be able to afford to provide taxpayer-provided subsidies” for “50 or 60 percent of employees that are now provided with employer coverage.” Cornyn noted that “those individuals will be eligible for taxpayer provided subsidies in the exchanges.” As Kessler notes, he made no distinction between the federal and state exchanges. A Cornyn spokesperson replied that Cornyn was asking a “hypothetical question.”

Kessler concludes this explanation doesn’t add up, in part because the legal theory being used by the challengers had already achieved widespread airing at that point, and Cornyn was not framing a question about whether subsidies would be available. To be fair, the initial version of the IRS rule — which declared subsidies would go to all states, and which is now being challenged — had already been proposed in the summer of 2011, so perhaps Cornyn simply believed the rule would apply (though it wasn’t made official until months later, in the spring of 2012). But another possible explanation is that Cornyn didn’t believe the challengers’ legal theory — at the time, that is.

“Cornyn has perhaps the weakest defense,” Kessler concludes. “His concerns about the budget make little sense if one believes that the citizens in about three-quarters of the states would not qualify for premium subsidies.”

I would only add that Cornyn recently claimed, with apparent glee, that “the Supreme Court is going to render a body blow to Obamacare from which I don’t think it will ever recover.”

The more media scrutiny this lawsuit receives, the more trumped-up and circus-like it looks. And there are still plenty of questions about it that remain unanswered.


* ADMINISTRATION’S NEXT MOVE IN DEPORTATION BATTLE: ABC News is reporting that the administration may not seek an emergency stay of the Texas court ruling blocking Obama’s executive actions, though it will continue to appeal the ruling to the 5th Circuit Court of Appeals. This could take many months, which means the millions who may apply for deportation relief may have to wait, though it’s not clear how much this will matter, since the deferred action status for many of them was set to begin this spring.

The immediate political question: With legal resolution possibly a long way off, do Republicans continue insisting that funding for Homeland Security also roll back of those executive actions, thus risking blame for any shutdown that might occur, on the theory that they can’t count on the Courts blocking them over the long term?

* IN DEPORTATION FIGHT, CONSERVATIVES DIG IN: Carl Hulse reports that even with the Texas court ruling, conservatives are in no mood to allow GOP leaders to fund Homeland Security cleanly:

If anything, one official said, the ruling could make conservative Republicans more determined — now that a federal judge has taken their side — to prohibit the financing of Mr. Obama’s immigration initiatives.

So, if GOP leaders were hoping to use this ruling as an “off ramp” to get out of this mess, it looks like conservatives aren’t going to let them. Which means that, if John Boehner does want to pass clean Homeland Security funding, he’ll need the help of a lot of Democrats. And that’s apparently a big No-No!

* OBAMA’S NUMBERS ARE RISING: New Gallup polling finds that Obama’s favorability rating has hit 50 percent, even as he has also enjoyed a 10-point spike in his economic approval numbers. This looks like it’s related to a rise in good feelings about the economy, and notably, his biggest improvements come among independents:

Independents show much greater increases than the other groups on Obama’s economic approval (17 points) and his favorability (12 points).

If these trends continue, at what point do Republicans begin to question the efficacy of their continued chanting of “where are the jobs” and “a Hillary presidency equals a third Obama term”?

* OBAMACARE SIGN-UPS HIT 11.4 MILLION: The administration has announced that 11.4 million people have now signed up on the Obamacare exchanges this year. That number includes renewals, and also could decline if and when some of them don’t pay. Key context:

The announcement indicates the Obama administration will beat its own 2015 enrollment goals after a much quieter sign-up season this year. But the announcement also comes just weeks before the Supreme Court will hear a case challenging the legality of premium subsidies provided through the nearly three dozen states relying on for enrollment.

Obamacare is exceeding its own coverage expansion goals! Better get SCOTUS right on that…

* POLL: HILLARY CLINTON REPRESENTS FUTURE: A new CNN poll finds that of all the presidential contenders, only Hillary Clinton is seen by more Americans as a candidate of the future as opposed to the candidate of the past, by 50-48. By contrast, Jeb Bush is seen as a candidate of the past by 64-33. And, interestingly, Scott Walker is seen the same way by 42-39, even though he could plausibly argue that he,  not Clinton, represents a new generation of leadership.

Obviously it’s too early to make too much of such polling. But it’s worth asking whether Clinton’s status as the potential first female president might help her deflect such generational attacks.

* JEB BUSH: I MIGHT BE DIFFERENT FROM THOSE OTHER BUSHES: Jeb Bush is set to give a speech today on foreign policy in which he will claim he is his “own man,” a line that will garner a lot of headlines. But elsewhere in the speech, he will also say that Obama’s approach to foreign policy has been “inconsistent and indecisive,” and that efforts to increase “engagement with the world has left America left influential in the world.”

In other words, a lot of the same old buzzwords. New and different!