I was on time
No, you were late
No, that's not a state
Ah, yes, I remember it well
The New York Times - the paper of record - re-writes history today with their risible "Four words that imperil health care law were all a mistake, writers now say". In a nutshell, everybody drafting Obamacare totally, totally meant that subsidies were supposed to be extended to the federal exchanges, no matter what the text of the law says. In an article that mentions Jonathan Gruber not once, you can get a feel for the desperate spin.
There's two problems with this argument, conveniently disregarded by house hack Robert Pear. The first is that when the Obama Administration argued King v. Burwell at the Supreme Court, there was no mention of "drafting mistakes":
This may be how congressional staffers and legislators characterize the drafting process now, but that’s not what the federal government and its supporting amici told the Supreme Court. The solicitor general, for instance, proclaimed in its brief that the phrase “established by the State” was a “statutory term of art.” At oral argument, the SG also denied that there were any last-minute revisions (as I discussed here). Throughout, the federal government has insisted that the statute actually authorizes the contested IRS rule.Because drafting errors must be corrected by Congress with new legislation. So we can't call it an error (as we do now) so it must be another state of ambiguity.
Why hasn’t the SG embraced the “drafting error” argument? Because that would be a sure way to lose.
The second problem is that after the law passed in 2010, the IRS crafted their rules based on the letter of the law, meaning that subsidies were only available on state-run exchanges. But when only a handful of states set up their own exchanges, the IRS suddenly discovered they were wrong all along!
In 2012, HHS and the Internal Revenue Service arrogated to themselves the power to rewrite the law and published a regulation simply decreeing that subsidies would be available through the federal exchanges too. The IRS devoted only a single paragraph to its deviation from the statute, even though the "established by a State" language appears nine times in the law's text. The rule claims that an exchange established on behalf of a state is a "federally established state-established exchange," as if HHS is the 51st state.So, basically, the health care law is whatever the Administration wants it to be for whatever argument they're making today. That's why it's a law.
Careful spadework into ObamaCare's legislative history by Case Western Reserve law professor Jonathan Adler and Michael Cannon of the Cato Institute has demonstrated that this jackalope rule-making was contrary to Congress's intent. For example, the bill appropriated a mere $304 million for HHS to run exchanges. The actual cost turned out to be $3.3 billion as state after state dropped out.