NYTimes: Four Words Could Sink Obamacare
Tuesday, 26 May 2015 10:21 AM
Four words "carelessly" included in the 900-page Obamacare law stand to derail the president’s signature piece of legislation, according to The New York Times, which spoke to people on both sides of the aisle about the genesis and potential impact of the phrase in question: "established by the state."
The Supreme Court is expected to issue a ruling this summer on the legality of providing health insurance subsidies to people in 37 states that did not set up their own healthcare exchanges. The 13 states that operate their own exchanges would be unaffected.
The plaintiffs in the case opposing the subsidies argue that the law’s "literal wording" of "established by the state" means that tax subsidies are only available to consumers in states that established their own health insurance marketplaces, according to the Times.
Regardless of how the high court rules, lawmakers who participated in drafting the law say there was never meant to be a demarcation for subsidies for those who purchased their health insurance on state-run exchanges versus the federal marketplace.
"I don’t ever recall any distinction between federal and state exchanges in terms of the availability of subsidies," said former Maine Sen. Olympia Snowe, a Republican who helped write the Finance Committee version of the bill. She voted against the final version of the Senate bill but maintains that there was never any discussion of or intent to "deny people subsidies."
"It was not their fault if their state did not set up an exchange," Snowe told the Times, blaming the confusion on "inadvertent language" that was tweaked over and over again.
Former New Mexico Sen. Jeff Bingaman, a Democrat, chalked the now controversial four words up to an oversight that "escaped everyone’s attention, or it would have been deleted, because it clearly contradicted the main purpose of the legislation."
Others who spoke to the Times characterized the amorphous wording as "inadvertent, inartful or a drafting error … but none supported the contention of the plaintiffs."
Senators initially assumed that all states would set up exchanges and added a section to the IRS Code to provide subsidies, in the form of tax credits, for insurance purchased through an exchange, according to the Times. Upon realizing that perhaps "five or 10" states would opt not to create exchanges, a backup plan was created to establish a federal exchange.
But the Senate Finance Committee neglected to include language in the tax code providing for subsidies on the federal exchange, according to Christopher Condeluci, a staff lawyer for Republicans on the Finance Committee at the time.
"We failed to include a cross-reference to the federal exchange," he told the Times. "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."
Nonpartisan lawyers and experts in tax law and public health, working on separate tracks, crafted the legislation’s verbiage, according to the Times, and "it appears that the four words now being challenged … were carelessly left in place as the legislation evolved."
The Obama administration contends that "established by the state" is "a term of art" that encompasses the federal exchange, according to a March Bloomberg story on the four words.
U.S. Solicitor General Donald Verrilli has asked the high court "to look beyond" the phrase and instead view the legislation’s "broad purpose of providing coverage to tens of millions of uninsured Americans."
"Congress designed the law with the goal of offering tax credits nationwide and argues that no member of Congress suggested otherwise during the debate over the measure, which is President Barack Obama’s biggest legislative initiative," Verrilli maintains, according to Bloomberg.
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© 2015 Newsmax. All rights reservedThe Supreme Court is expected to issue a ruling this summer on the legality of providing health insurance subsidies to people in 37 states that did not set up their own healthcare exchanges. The 13 states that operate their own exchanges would be unaffected.
The plaintiffs in the case opposing the subsidies argue that the law’s "literal wording" of "established by the state" means that tax subsidies are only available to consumers in states that established their own health insurance marketplaces, according to the Times.
"I don’t ever recall any distinction between federal and state exchanges in terms of the availability of subsidies," said former Maine Sen. Olympia Snowe, a Republican who helped write the Finance Committee version of the bill. She voted against the final version of the Senate bill but maintains that there was never any discussion of or intent to "deny people subsidies."
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"It was not their fault if their state did not set up an exchange," Snowe told the Times, blaming the confusion on "inadvertent language" that was tweaked over and over again.
Former New Mexico Sen. Jeff Bingaman, a Democrat, chalked the now controversial four words up to an oversight that "escaped everyone’s attention, or it would have been deleted, because it clearly contradicted the main purpose of the legislation."
Others who spoke to the Times characterized the amorphous wording as "inadvertent, inartful or a drafting error … but none supported the contention of the plaintiffs."
But the Senate Finance Committee neglected to include language in the tax code providing for subsidies on the federal exchange, according to Christopher Condeluci, a staff lawyer for Republicans on the Finance Committee at the time.
"We failed to include a cross-reference to the federal exchange," he told the Times. "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."
Nonpartisan lawyers and experts in tax law and public health, working on separate tracks, crafted the legislation’s verbiage, according to the Times, and "it appears that the four words now being challenged … were carelessly left in place as the legislation evolved."
The Obama administration contends that "established by the state" is "a term of art" that encompasses the federal exchange, according to a March Bloomberg story on the four words.
U.S. Solicitor General Donald Verrilli has asked the high court "to look beyond" the phrase and instead view the legislation’s "broad purpose of providing coverage to tens of millions of uninsured Americans."
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