President Barack Obama sent his HHS Secretary, Sylvia Mathews Burwell, to Congress to testify before the House Ways and Means Committee about, among other things, his plans should the Supreme Court rule against Federal subsidies for those who bought health plans through ObamaMart and not through state exchanges as Obama’s ACA requires. He said, through her,
If the court says that we do not have the authority to give subsidies, the critical decisions will sit with the Congress and states and governors to determine if those subsidies are available[.]
This is openly cynical. “If the court says…” the subsidies are not available, they’re not available. Full stop.
The Governors and states made their own critical decisions clear five years ago when, in full view of the ACA’s statement that Federal subsidies are available only through state exchanges, they carefully and with forethought declined to create state exchanges.
The Congress made its own critical decision all those years ago when it wrote the law that said Federal subsidies would not be available except through state exchanges.
Of course the better policy wonk than his policy wonks knows this, and he knew it when he sent Burwell up there to spout that nonsense. The only way the Court can upend those critical decisions will be through a twisted interpretation of the text of the law that leads them to uphold the Federal subsidies.