UPDATED: NY Times further confirms that it was ALWAYS Congress's intent to provide tax credits in EVERY state regardless of exchange status
One of the Big ACA Stories today is Robert Pear's piece in the New York Times about the origin/history of the infamous "...established by the state" wording in the Affordable Care Act which is at the heart of the impending King v. Burwell Supreme Court decision (now just 1 month away from the expected announcement):
...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.
Pear goes on to interview and quote various former/current members of Congress and their staff--both Democrats and Republicans alike--all of whom give the same response:
“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.”
Former Senator Jeff Bingaman, Democrat of New Mexico, said there may have been “some sloppiness in the drafting” of the bill. Mr. Bingaman, who was a member of both committees that developed the measure, said he was surprised that the lawsuit had reached theSupreme Court because the words in dispute appeared to be a “drafting error.”
...The idea of denying subsidies to people who bought insurance through the federal exchange “was never discussed,” said Charles M. Clapton, a lawyer who worked on both committees for Senator Michael B. Enzi, Republican of Wyoming. Mr. Clapton said he had difficulty accepting the argument advanced by the plaintiffs because it was “so contrary to the intent” of those who had written the legislation.
...But senators and staff lawyers came to believe that some states — “five or 10 at the most” — would choose not to set up exchanges, said Christopher E. Condeluci, who was a staff lawyer for Republicans on the Finance Committee.
...“We failed to include a cross-reference to the federal exchange,” Mr. Condeluci said. “In my opinion, due to a drafting error, we overlooked it. It was an oversight. Congress, in my experience, always intended for the federal exchange to deliver subsidies.”
It's a good piece, and fills in some additional context on the history of the law. However, the main point of the story--that the intent of the law was always to provide federal tax credits to qualifying individuals regardless of whether their state had "established" an exchange or not--has already been thoroughly documented by folks like Greg Sargent, Jonathan Cohn, Brian Beutler...and, if you prefer your sources to be "less biased", other folks like the Congressional Budget Office and even a few dudes you may be familiar with by the names of Alito, Scalia, Thomas and Kennedy:
...In one section the brief quotes the conservative justices acknowledging that the Democratic-led Congress "thought that some States might decline ... to participate in the operation of an exchange." The aim is to rebut the challengers' contention that Congress expected every state to set up an exchange and was blindsided when some three dozen declined to do so.
As I noted back in January, here's a partial list of those who were always under the impression that the ACA intended to provide credits to every state:
- Every member of the U.S. House of Representatives, regardless of party
- Every member of the U.S. Senate, regardless of party
- Every staff member of every member of Congress
- Everyone working at the White House
- Everyone working at the Dept. of Health & Human Services
- Everyone working at the Internal Revenue Service
- Everyone working at the Treasury Department
- Everyone working at the Department of Justice
- Everyone working at the Congressional Budget Office
- Every Governor or State Legislator and their staff members, regardless of party
- Everyone working for every insurance companies and hospital corporations involved in the process
Not that any of this will likely matter one whit to at least 3 members of the Supreme Court...but the next time a question about, say, the Second Amendment comes up in conversation, I don't ever want to hear anyone try to play the "If only we had some way of knowing the Founding Fathers' original intent!!" card again...because it's pretty obvious that even when you can simply walk right up and ask Congress what their "original intent" was, it doesn't make a damned bit of difference.
As Jon Stewart put it last year (note: the virtually-identical "Halbig v. Burwell" case was the one expected to be taken up by the Court at the time, but everything in Stewart's piece applies to King v. Burwell instead):
UPDATED: Steven Brill, the author of America's Bitter Pill: Politics, Money, Backroom Deals, and the Fight To Fix Our Broken Healthcare System" (which is most definitely not the most flattering take on the Affordable Care Act) noted this afternoon that he chimed in on this issue as well back in March, and came to the same conclusion:
Congress knew exactly what it wanted to do when it passed the Affordable Care Act in 2010, and contrary to the plaintiffs' claim, that included wanting subsidies for buying health insurance on the Obamacare exchanges to be available to all citizens, even those residing in the 36 states that did not set up their own exchanges, instead relying on the exchange set up by the federal government.
...In short, I had a catbird seat for doing exactly that kind of fact-based reporting that anyone judging a case like this - reporters, as well as judges - should do. But I didn't appreciate it because neither I nor the people I was interviewing had any expectation that this case would become something the Supreme Court would take seriously.
Indeed, when I mentioned the case to several of those sources during the spring and summer of last year, all of them - Democrats and Republicans - did some version of an eye roll. This is why there is only scant mention of the case in my book, the draft of which was completed before the court took the case.
I've now gone back and looked at my notes and can report that I interviewed 21 congressional staffers and members last year in my effort to reconstruct the day-by-day narrative of how Obamacare happened. None ever mentioned the possibility that the subsidies did not apply to the states in the federal exchange.