Sen. Ted Cruz's Obamacare hearing in a Senate Judiciary subcommittee Thursday afternoon began rather bizarrely.
To his right sat two Democrats: Sens. Christopher Coons, the ranking member of the oversight subcommittee, and Richard Blumenthal.
Directly in front of Cruz was an empty row of seats, vacant because witnesses from the Obama administration who were asked to fill them didn't show up. Beyond that was an audience filling almost every seat in the room, drawn by the hearing's subject: the writing of the Obamacare subsidy rule, a topic that is also in a roundabout way currently under consideration by the Supreme Court.
The Treasury Department had told Cruz last week that it wouldn't be sending any witnesses, so the Texas Republican wasn't surprised. The empty table was theater, and Cruz took advantage of the opportunity, railing against the Affordable Care Act and the administration for not sending the requested Treasury officials, a snub which he called "the height of arrogance."
"It's a symbol for how little regard the Obama administration has for the American people," Cruz said. "By their absence, I take it the administration is saying they are not subject to oversight."
Cruz wrote a letter last week to Treasury Secretary Jacob Lew threatening to "pursue other options, including compulsory process."
The Treasury Department said it has long cooperated with lawmakers.
"Tax credits made available through the Affordable Care Act have helped millions of Americans in every state get health insurance coverage. The regulations related to these tax credits are now over three years old—they were proposed in 2011 and finalized in 2012. Treasury has worked cooperatively with Congress to address its interest in the regulations, including by providing letters, briefings, and testimony to Congressional Members and staff. The material provided to Congress describes the process by which the regulations were drafted and approved," wrote a Treasury spokesperson in a statement responding to the hearing.
As the senators talked, others arrived: Republicans Jeff Sessions and Orrin Hatch and Democrats Sheldon Whitehouse and Amy Klobuchar.
So instead of hearing from witnesses, the subcommittee members spoke among themselves about an old topic of debate (the success of the Affordable Care Act), a new topic (the three empty seats in front of them), and a very popular topic: whether subsidies offered on federal Obamacare exchanges are legal.
The Supreme Court is currently contemplating the third question in King v. Burwell, with the health insurance of some 10 million Americans at stake.
"Contrary to the arguments of many partisan opponents, I firmly believe the right decision will be to uphold this law," Blumenthal said.
Democrats were nonplussed by the lack of administration witnesses.
"I find it unremarkable that the witnesses requested for today did not appear. The administration has ongoing litigation," Coons said.
Blumenthal added that to appear before the subcommittee would have been "imprudent and foolhardy, and might have even been perceived as improper."
"The timing of this hearing ... predetermined the outcome of their appearing here," he said.
Predictably, the Republicans in attendance disagreed.
Hatch said he would have thought the administration would "jump at the opportunity" to explain the rule-making process.
"It really has no good explanation," he said.
And then once the conversation died down (no consensus was achieved on any of the topics being debated), the second witness panel of legal experts and advocates was introduced. They all showed up and, as expected, had no consensus on what the writers of the Affordable Care Act must have meant when they wrote in one section of the bill that health insurance subsidies would be available on exchanges "established by the state."
Not to worry, the Supreme Court will rule on the import of those very same words in a few short weeks.