Another red state caught lying to the Supreme Court about health insurance exchanges

By Joan McCarter

April 06, 2015--Gov. Robert Bentley speaks to educators participating in HudsonAlpha's Genetic Resources to Empower Alabama Teachers (GREAT) Conference at the Department of Archives and History in Montgomery on Wednesday, Jan. 22, 2014.

Evidence continues to mount that the Republican states which filed amicus briefs for the plaintiffs in the King v. Burwell Supreme Court Obamacare challenge lied to the court.

Over the past few months, The Huffington Post has been examining various states' documentation of policy meetings, legislative hearings, local news reports, speeches, etc. to find any evidence at all that state lawmakers talked about pre-King what they now say they all knew—that the law was written to exclude subsidies to people buying health insurance on the federal exchange.

A very strong case in point: Alabama.

Republican Gov. Robert Bentley had actually campaigned on setting up a state-based exchange, and initially pushed hard to make it happen.

That included setting up the Alabama Health Insurance Exchange Study Commission, which was tasked with determining costs, processes, working with stakeholders, etc.

Did the possibility that the state's residents couldn't receive the subsidies if the state didn't create an exchange ever come up?

"No. No. No. That was never, never brought up," [state Sen. Jim McClendon (R)] McClendon said in an interview with The Huffington Post last month.

"I was unaware of that stipulation in the Affordable Care Act, and I would almost have to guess that anybody involved in this process was not aware of it.

I was a little surprised when it came up eventually.

Nope.

I was the chairman of the commission and I was totally unaware of that."

In other words, according to McClendon, at no point during the commission's five meetings between September and November 2011, nor during a legislative debate that stretched into the spring of 2012, did anyone conceive of the most significant consequence that could result from Alabama opting for a federally run health insurance marketplace.

The commission ended up unanimously recommending a state-run exchange.

By the time that recommendation was made, Republican opposition to the law and anything at all having to do with it had solidified, and even Bentley flip-flopped.

But in making that decision, there was no "realization" that some 165,000 people would be left out in the cold, unable to afford insurance without the subsidies.

In fact, three more members of the commission who talked to HuffPost completely deny that possibility ever occurring to them.

Two members of the commission, though, say they totally knew about it, one of whom is a former representative who was forced to resign after pleading guilty to corruption charges and the other an insurance industry representative who says he has the notes to prove it, but refuses to make those notes available.

This understanding by the states is critical to the case and to the justices' decision.

They're not deciding whether the law is constitutional, but what Congress intended in this statute.

Critical to that is whether Congress made their intent clear to the states—that's the key to Justice Anthony Kennedy's major concern expressed in the oral arguments.

Was the federal government being unconstitutionally coercive in the law by putting this burden on the states?

And would they be so sneaky about doing so?

Most reasonable people would say "no."

We'll see if the majority of the Supreme Court is made up of reasonable people in June, when their decision is handed down.