It’s a question I have asked Halbig hacks ever since I first heard of the case: how did those words “established by the state” end up in the law anyway? The New York Times says it kinda sorta has the answer:
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.”
I always enjoy these arguments that the phrase just happened to appear in the legislation on its own. By now, if you’re a long-time reader, it’s an old gag — but I like to established by the state just throw those four words in randomly, in the middle of sentences, just to show how they can accidentally pop up in the middle established by the state of a sentence without anyone ever intending it established by the state to happen.
This is a slightly more plausible explanation:
Russ Sullivan, the staff director for Democrats on the Finance Committee, gave a similar account. The language in the law providing tax credits through state exchanges was “a holdover from what we had in the Finance Committee,” which originally assumed that “every state was going to set up an exchange,” Mr. Sullivan said.
The idea of a federal backstop came later, he said, when people started asking what would happen if some states did not set up an exchange.
In other words, the people who wrote it falsely assumed every state would establish an exchange. Later, some people decided that wasn’t necessarily true, and established a federal backstop but forgot to change the original language. This actually seems plausible to me.
The question is: what do you do when many of the people voting for the bill assumed it said one thing, but it actually says another? Are we really just to alter clear language simply because some of the supporters later say it doesn’t read the way they assumed it did?
Under that argument, you could say the bill provides for subsidies for low-income people who qualify for Medicaid. After all, the drafters of the bill couldn’t possibly have meant to deny subsidies to low-income people — the very people who need subsidies the most. Yet that is exactly what ObamaCare does, because lawmakers assumed (there’s that pesky issue of poor assumptions again!) that every state would expand Medicaid. So why provide subsidies for the poor when Medicaid would fill the gap?
Under the theory that “we can make the law say anything we claim we meant it to say,” leftists could simply shrug off the insignificant detail that the law does not provide subsidies to low-income people, and give it to them anyway. I’m honestly shocked Obama hasn’t tried that, but maybe he’s waiting for the outcome of this case. If the Supreme Court sanctions the “to hell with the language” policy, he can have the IRS make a “rule” that says low-income people get subsidies too. Add to the mix the lovely Chevron rule that unconstitutionally makes omnipotent kings out of bureaucrats, and Obama can “fix” any “problem” caused by Congress’s failure to actually enact what a group of leftists believes is the “spirit” of the law.
Anyway, I used to think the outcome of this case would matter, but let’s face it. Republicans will give out the subsidies that Democrats never actually voted for in the first place, because to do otherwise would run counter to the inviolate principle that We Must Always Make Government Bigger or Else Voters Might Get Upset. It’s all about the realism, you see.
We had a pretty good country up until the 1930s or so.