O disingenuity!

Arthur Rackham, Nibelungs at work, 1910. Via Encore Editions.

So while SCOTUS is hearing the oral arguments, and nobody has yet found a member of Congress from when the Affordable Care Act was passed in March 2010 who thought that it prevented federally run exchanges from offering subsidized health insurance premiums, a friend-of-the-court brief suggests that some smart guys knew all about it:

 Six states, led by Attorney General Scott Pruitt of Oklahoma, say that it “came as no surprise” to them that Congress made subsidies available only through state-run exchanges. Congress was trying to “entice” the states to set up their own exchanges, and this “conditioning of tax credits was the primary means of doing so.” The six states point out that in November 2012, two months before the deadline for establishing state exchanges, Pruitt challenged in court the I.R.S. rule granting subsidies through federally run exchanges.

It may not have surprised them exactly, but it certainly took them a while to find out. Pruitt filed his lawsuit, Pruitt v. Sebelius, in January 2011, without mentioning the Moops issue of whether subsidies are available to federally run exchanges at all; the substance of the case was

to disprove the constitutionality of the individual mandate. As the Supreme Court upheld the requirement for individuals to purchase health insurance or pay a penalty as a tax, this aspect of Pruitt’s case was made obsolete.

That was in Florida v. Department of Health and Human Services, in a ruling of June 2012. However Pruitt didn't withdraw his Oklahoma lawsuit; he just replaced the old argument on the mandate with the new one on the Moops, which it took him the next three months to complete, filing his amended complaint on September 19 (and not November, that's a Times error; the brief says "two months before the deadline for establishing exchanges", and Emily Bazelon calculates not from the original deadline in November 2012 but the amended one in January 2013), and guess who heard about it and welcomed it enthusiastically the next day? Our old pal from the Cato Institute, Michael F. Cannon!

Since this IRS rule also unlawfully taxes 250,000 Oklahomans under the individual mandate – a tax that in 2016 will reach $2,085 for a family of four earning $24,000 – the attorney general has an awful lot of individual Oklahomans that he could add to its plaintiff roster.

Interesting that Cannon continues to refer to the mandate as "unlawful" months after Justice Roberts ruled that it wasn't. Not very respectful. And pretty dishonest, in that he's totally wrong and presumably knows he is on that "tax": the family of four with an income of $24K is very poor and obviously qualified for Medicaid, and not required to buy health insurance at all. The $2,085 fine is for a family of four with an income of between around $30,000 (or 133% of the poverty line) and $83,400, and of course for all of those people a Marketplace policy is going to be subsidized, very well for most of them, and quite a lot would be getting insurance for less than the fine they'd pay for not having it, which is the whole point.

In the end, anyhow, all those plaintiffs didn't show up; the only people who wanted to sign up with the case were the filers of a motion

on December 6, 2012 by GC Restaurants SA, LLC, Old England's Lion & Rose, LTD, Old England's Lion & Rose at Castle Hills, LTD, Old England's Lion & Rose at Sonterra, LTD, Old England's Lion & Rose Forum, LLC, and Old England's Lion & Rose at Westlake, LLC (hereinafter "Movants") [Docket No. 44].

But without success, in the pattern that is now becoming familiar (you might call it a standing feature of the debate):

The Movants are Texas residents. The events giving rise to their claims occurred, are occurring and will occur in Texas, not in the Eastern District of Oklahoma. Additionally, as Defendants argue, the Movants' employees are likely necessary parties to the Movants' claims, and as those employees are Texas residents, this court has no personal jurisdiction over them. Furthermore, Movants will not be prejudiced by filing a separate action in Texas.

In its discretion, based on these and other considerations of equity and judicial economy, the court hereby DENIES the motion to intervene [Docket No. 44].

The sequence of events is thus pretty clear. Upon the passage of the Act, all the Nibelungs in their underground caverns began laboring for ways to tear it down, and by the end of 2011, certain streams of thought had more or less coalesced; the mainstream idea of what was to make it to the Supreme Court in 2012 as Florida v. HHS, and the outlier Moops hypothesis of Jonathan Adler and Michael Cannon that has finally reached the Supreme Court today. After the Florida challenge went down in flames, Pruitt and others switched to the Cannon-Adler idea. As Media Matters described it in January 2014,

Pruitt's lawsuit, which is the brainchild of Michael Cannon of the conservative Cato Institute and the National Review Online's Jonathan Adler...

Or in the National Review itself:

That head-spinning argument has been publicized primarily by Cannon and Adler, and it’s been taken up by Pruitt, who was born in Lexington, Ky., but is evidently a Wild West, independent Oklahoman at heart.

They weren't "surprised" in the sense that they were always sure something had to be wrong with Obamacare. But Pruitt's argument in the amicus brief—

In making their Exchange-establishing decisions, the States were well aware that the plain text of Section 36B conditioned the availability of tax credits on States establishing exchanges.... To be sure, the States were aware that the IRS was claiming that tax credits would be available regardless of the States’ decisions, but the States (1) could read the plain text of Section 36B and see that it conditioned the subsidies, and (2) were aware of the many arguments—including those made by the State of Oklahoma in litigation some two months prior to the exchange-establishing deadline imposed by HHS—that the IRS Rule was contrary to Congress’s intent.

—is beyond disingenuous: nobody was "aware" of this until they heard it from Adler and Cannon, and most didn't believe it then either, including, obviously, the 22 states that have filed a brief arguing the opposite. I call shenanigans. Or should I say (because IANAL, thank gods) by making it sound like a sort of common knowledge, and hiding the way everyone who has shared in this belief gets it in a direct line from Adler and Cannon's sudden discovery nearly two years after the Act was passed, Pruitt's brief is lying in testimony presented to the Court?

And doesn't he have the shit-eating grin to prove it? Oklahoma Attorney General Scott Pruitt, via his friends at cato.org.