"This All Comes Down To Nine Words In The Law..."

"...where arguably the government was unclear."

So says Ezra Klein about the new dagger at the throat of Obamacare, either because of a lack of understanding or because that is what he has been asked to say.

Still, if you watch his video, at exactly the 1:00 mark you can see that the highlighted section goes on a little bit longer: something about "under 1311"? What's that all about?
There are three key sections of the bill: 1311 establishes state exchanges; 1321 establishes federal exchange; 1401 establishes premium assistance through subsidies. Sections 1311 and 1401 are tied together to show how to funnel subsidies through state exchanges. However, there is no parallel language to tie Section 1321 into a way to funnel subsidies through the federal exchange. Thus, the federal subsidy to states’ exchanges, according to Max Baucus one of the originators of the bill, was an incentive for states to comply with the law.
So, in other words, even if you wipe out the "established by a State" language -- the way SCOTUS decided to re-author the individual mandate as a tax -- you still have the problem that the Federal exchanges were not established under section 1311. Their legal authority to exist does not come from that section of the law. Thus, the law does not support their receiving Federal subsidies.

Now Klein has spoken to all manner of politicians who swear up and down that this was some sort of drafting error. All of us who remember the actual debate probably remember that this was an intentional plan to try to force the hands of the states.

Leave that aside, though. Pretend the words "established by the States" aren't present. Grant them their rewrite of the entire highlighted section of the law -- the 'nine words.'

Section 1311 isn't what authorizes these other exchanges to exist. Thus, if this 'all comes down to nine words,' we should win on the merits. You can take the nine words back, and it won't make any difference.


E Hines said...

It's not unexpected, from a man who insists that the Constitution isn't binding on anybody.

Eric Hines

Grim said...

I thought his point was that it was written over 100 years ago, so no one could understand it anyway. So much the worse for Aristotle, Seneca, or Descartes!

E Hines said...

That's why it's not binding. He did "correct" the age part though....

Eric Hines

Assistant Village Idiot said...

At law, there is a greater chance that actual meaning and reason will prevail. No guarantee, of course. Yet better than in the court of public opinion, where questioning what is considered conquered territory will be portrayed as wanting people to be sick and untreated.