Now that the Supreme Court has agreed to hear the King v. Burwell challenge to the Federal subsidies in Obamacare, the defenders of the law are busy once again trying to trot the deliberate and intentional lie that the provision in Obamacare that limits the subsidies to those who are on “State” exchanges is a “typo” and that clearly Congress meant to include all exchange customers in the subsidies provision. Paul Krugman, who is even worse at being a lawyer than he is at being an economist, trotted out a representative sample of this patent dishonesty yesterday in the New York Times.
The first and only necessary rejoinder to this attack, at least from a legal standpoint, is, “So what?” It is not the job of the courts to fix Congress’ screw ups. If Congress screwed up a law and wrote it to say exactly the opposite of what they meant, a court does not have leeway to just rewrite the law accordingly. Fortunately for such an unfortunate Congress, there is a perfectly acceptable way for them to fix their “typos,” if they are in fact typos, which is that they can go back and amend the law through the normal legislative process.
But even setting that aside, it is clear, given the evidence that has been unearthed (by Greg Sargent, no less!) that the section in question was not a “typo” and that restricting subsidies to those who were on state-run exchanges reflects the clear intent of the law’s drafters. As Sargent pointed out some months ago when this argument became relevant in the context of the Halbig case (which raised the same issue before the D.C. Circuit),
The first Senate version of the health law to be passed in 2009 — by the Health, Education, Labor and Pensions Committee — explicitly stated that subsides would go to people on the federally-established exchange. A committee memo describing the bill circulated at the time spelled this out with total clarity.
The disputed language ended up in the final bill because the two versions — both of which intended subsidies in all 50 states, albeit by varying structures — were merged.
As I wrote at the time, under ordinary canons of statutory construction, this is considered conclusive proof that Congress actually intended to limit the subsidies to people who were on state-run exchanges:
This is not really a close call or …read more