There's a
new, deep dive in
The New York Times into the four words in Obamacare that are jeopardizing health insurance subsidies to millions: "established by the state." Those four words, plaintiffs in the
King v. Burwell say, were put there intentionally by the law's writers to coerce states into participating by creating their own exchanges. To succeed in their challenge to the law, they have to convince a majority of Supreme Court justices of that. The problem is that the the people most involved in writing that law have maintained since the lawsuit began that there's no way Congress meant to do that. The interviews and analysis in this
Times story reinforce that.
The answer, from interviews with more than two dozen Democrats and Republicans involved in writing the law, is that the words were a product of shifting politics and a sloppy merging of different versions. Some described the words as “inadvertent,” “inartful” or “a drafting error.” But none supported the contention of the plaintiffs, who are from Virginia.
“I don’t ever recall any distinction between federal and state exchanges in terms of the availability of subsidies,” said Olympia J. Snowe, a former Republican senator from Maine who helped write the Finance Committee version of the bill.
“It was never part of our conversations at any point,” said Ms. Snowe, who voted against the final version of the Senate bill. “Why would we have wanted to deny people subsidies? It was not their fault if their state did not set up an exchange.” The four words, she said, were perhaps “inadvertent language,” adding, “I don’t know how else to explain it.”
This confirms
interviews and analysis that we've seen since the lawsuit started gaining traction. The language was a result of hurried drafting, combining the legislation coming out of the Health, Education, Labor and Pensions Committee and the Finance Committee. The Finance Committee foresaw the possibility that some states wouldn't set up their own exchanges, and authorized a federal exchange as a backup. Even Charles M. Clapton, a lawyer doing committee work for Republican Senator Michael B. Enzi of Wyoming says denying subsidies to anyone "was never discussed," and is "so contrary to the intent" of legislators. But in the combining of the bills the parallel tax code language that allows for the subsidies in the states wasn't mirrored for the federal exchange.
The court will issue its ruling at the end of June, and in all probability has already decided. The big unknown here is whether congressional intent will matter at all to the two likely swing votes on the panel—Chief Justice John Roberts and Anthony Kennedy. That and the prospect of taking insurance away from something like 8 million people.