The first Senate version of what was to become the ACA was reported from the Senate Committee on Health, Education, Labor, and Pensions (“HELP”) on September 17, 2009, as S. 1679, the Affordable Health Choices Act. In that bill the States were given a 4-year period following enactment to establish a “Gateway”—a Health Insurance Exchange. If a State failed or refused to establish a “Gateway” at the end of that period the Secretary of Health and Human Services was directed to establish and operate a Federal Fallback “Gateway” in that State.
Expressly stated in S. 1679’s Federal Fallback established by the Secretary was a direct stipulation that the residents of that State “shall be eligible for premium credits” to pay for qualified health plans under certain conditions. See S. 1679, proposed Public Health Service Act section 3104(d)(1)(D). The bill explicitly tied the availability of the premium credits to the Federal Fallback “Gateway” and closely expressed then what is now only imagined to be included in the statutory text at issue in King v. Burwell.
That clear and explicit authorization that premium tax credits were also available through a “Gateway” established by the Secretary of Health and Human Services was subsequently not included in the version of the ACA later reported from the Senate Committee on Finance on October 9, 2009, as S. 1796, the America’s Health Future Act. The Senate Finance Committee version only authorized the establishment of Exchanges by a State and the availability of premium tax credits through Exchanges “established by the State”.
. . . Pertinent to King v. Burwell, the Senate Amendment was a deliberate “merger” of the two committee proposals consisting mostly of the Finance bill and adding the HELP federal fallback but without the premium credit tie-in language.
The issue in King v. Burwell initially is all about whether the Court can read into a law any statutory language that was earlier considered by the Congress but was not adopted in the subsequently enacted final version of that law. The Supreme Court has said in the past that there are few principles of statutory construction that are more compelling than the proposition that Congress does not intend to enact as statutory language provisions that it has earlier discarded in favor of other language. See Doe v. Chao, 540 U.S. 614, 622 (2004).There's a appealing nostalgia in reading words from the days when the "exchanges" would be openly called "Gateways." That was when Obamacare proponents were more willing to admit that the point of the exercise was to establish a narrow gate between you and your healthcare insurance, which they would guard assiduously. An "exchange," now, that summons up all kinds of illusions of choice, almost market-like. I'm also charmed to be reminded that an earlier version of the bill was called the "Affordable Health Choices Act." Because it's all about the choice! Isn't the real freedom being limited to the one right way, because it's good for you?
In a discussion at Megan McArdle's column, the usual complaint was made that evil Republicans won't say what they would replace the ACA with (as if they hadn't published a zillion alternative proposals, but never mind). One answer given was: "We'd replace it with the same thing we replaced slavery with: nothing."
I'm following this statutory interpretation argument with professional interest. I understand the statutory interpretation arguments on the plaintiffs' side, which are fairly traditional. I'm less clear about the argument for the defendant, which basically amounts to saying "The language must not say that, because it would contradict overarching principles, which is to say that there might have been explicit trade-offs, and that never happens." Not even my shaken confidence in the probity of the Supreme Court allows me to entertain the notion that they would adopt such a shoddy argument. I'm guessing that, if they punt this thing, they'll do it by invoking the lack of standing. That's a cowardly approach, but one with a more Court-like pedigree.