Forget the content of today's NY Times editorial on Obamacare, which I'll address in a moment. The rumors that the Gray Lady is now a high-school newspaper are true. This editorial has all the emotional maturity of a middle-school tweener complaining about changes at the vending machine. "Diet Dr. Pepper! Eww....gross!" It is a strident and tendentious mess. Away we go:
The central claim of the lawsuit, which was filed on behalf of four Virginians by a small group of conservative activists who have long sought to destroy Obamacare, is that the law does not allow tax-credit subsidies to be made available to anyone living in the 34 states whose health care exchanges are operated by the federal government, which stepped in when those states declined to set up their own.Baloney! Phony baloney, according to plaintiffs who probably don't even have standing, doncha know. Let's cut away all the emotional appeals and focus on the legal arguments.
This is, to put it mildly, baloney.
The four words — “established by the State” — appear in a subsection of the law dealing with the calculation of tax credits. The law’s challengers say this means that credits are available only in the 16 states that have set up their own exchanges.Yeah, funny thing about that, it's because it's true:
First, Section 1311 expressly requires that an authorized Exchange must be “established by a State.” Section 1304(d) also expressly defines “state” as “each of the 50 States and the District of Columbia.” Later amendments to the PPACA also provide that Exchanges created by territories are to be treated as the equivalent of state-run Exchanges, but there is no such language concerning federally run Exchanges.Oh those crazy sub-sections with their explicit definitions. This part of the NYT editorial is, well, it's simply darling:
Reading the Affordable Care Act as a whole, it’s clear that Congress meant to provide subsidies on both federal and state exchanges. For one thing, why establish a federal exchange that doesn’t actually work? As an amicus brief submitted by a group of legal scholars put it, “Congress does not write statutes to fail.”OMG, guys, it's totally clear Congress totally meant to activate the federal subsidies. A bunch of partisans said so, you guys! Do you know who was fooled? The IRS who initially drafted their policies based on the wording of the legislation passed in that only state-run exchanges would receive subsidies. But then when only a handful of states established exchanges - surprise! - they suddenly discovered they were wrong. A year after the legislation was passed they found - oh snap! - the federal exchanges get subsidies too.
So why did the IRS wait nearly 16 months to spring this new interpretation on the public? That’s also an easy one. As of August 17, 2011, when its rule was first proposed, only ten states had passed laws establishing their own exchanges. Seventeen had outright rejected the Obamacare exchanges. All told, 40 states had by that point failed to do the administration’s bidding and set up state-based Obamacare exchanges.I've been reading the comments the NY Times slam book and everybody thinks it's totes crazy that the Supreme Court might interpret words to mean what they say. Here's the thing, though: if there's an infirmity to the language of the law, it can only be remedied by a legislative repair:
Without exchanges in every state, Obamacare would surely fail as a policy matter. And without massive subsidies to offset the costs of Obamacare’s health plans, Obamacare would fail as a political matter. The IRS maneuver was a last-ditch attempt to paper over the law’s serious structural flaws.
Furthermore, actual “drafting errors” have to be corrected by new laws, not by executive fiat. Even when they are plainly obvious to everyone who sees them, that 3015 that should’ve been 2015 still has to be amended via a new law: passed by both Houses, and signed by the president. Yet, that’s not what this administration did.No, because Republicans managed to gain the largest majority in Congress since the Hoover administration, so let's just make stuff up.
Hey, I made it through this entire post without mentioning Jonathan Gruber! Yay me.