The hot conspiracy theory for the right on Halbig is that the "such states" phrase was intentional. Those sly Democrats in Congress wanted to force states to set up exchanges and hatched a scheme to make them do it because otherwise there would be no subsidies.
Like many others on the right, this is a lunatic theory and therefore has attracted a lot of support. But then some Koch-drones came up with a video of Jonathan Gruber, an architect of both Romneycare and Obamacare seeming to provide support for it:
I think what’s important to remember politically about this, is if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. But your citizens still pay the taxes that support this bill. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it. But you know, once again, the politics can get ugly around this.Joy abounded on the right. See! The architect of Romneycare and Obamacare, Mr. Awesome in its Evilness himself (referring to states' refusal to expand Medicaid) is copping to the plot. David Brooks set up repeated viewings in one of his vast spaces for entertaining. Justice Alito's clerk had already cut, pasted and blockquoted the Gruber quote for his 5-4 majority decision.
But wait! -- Someone discovered the paragraph just before the Gruber excerpt. Was it Kos? Media Matters? Atrios? No. That lefty liberal socialist journal, The American Conservative published it (citing Scott Sumner):
Yes, so these health insurance exchanges . . . will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law it says if the states don’t provide them the federal backstop will. The federal government has been sort of slow in putting up its backstop in part because I think they want to sort of squeeze the states to do it.So at worst, the nefarious scheme was to delay the federal exchanges to try to force the states to do it. Typical liberal skullduggery, but sadly, doesn't show intent in the statute.
But there's still hope -- maybe Gruber himself will affirm that what he really meant was in the second paragraph. Oops. (It's not clear if he had even heard the prior paragraph when he said this):
I honestly don’t remember why I said that. I was speaking off-the-cuff. It was just a mistake. People make mistakes. Congress made a mistake drafting the law and I made a mistake talking about it …But let's ignore the above and assume that Gruber is lying now, only meant the out of context part of the speech and fully understood and believed that there were no federal subsidies.
At this time, there was also substantial uncertainty about whether the federal backstop would be ready on time for 2014. I might have been thinking that if the federal backstop wasn’t ready by 2014, and states hadn’t set up their own exchange, there was a risk that citizens couldn’t get the tax credits right away.
But there was never any intention to literally withhold money, to withhold tax credits, from the states that didn’t take that step. That’s clear in the intent of the law and if you talk to anybody who worked on the law. My subsequent statement was just a speak-o—you know, like a typo.
I didn’t assume every state would set up its own exchanges but I assumed that subsidies would be available in every state.
The anti-ACA position apparently is that the excerpt from Gruber's speech by itself shows that the Dems were not keeping secret their scheme to force states to set up exchanges and intentionally wrote the language at issue in the ACA.
Why was Gruber's speech the only effort to publicize this? Why only once? Why no advertisements? Why no Presidential speeches?
Sorry - it's a ludicrous argument.
That, of course, means it is already the gospel truth on Fox.