ObamaCare Authors Say 'Drafting Error' Might Doom It

4 words are at the heart of the Supreme Court case
By John Johnson,  Newser Staff
Posted May 26, 2015 12:14 PM CDT
ObamaCare Authors Say 'Drafting Error' Might Doom It
Former Republican Sen. Olympia Snowe of Maine chalks up the problem to 'inadvertent language' in the law.   (AP Photo/Jacquelyn Martin, File)

Those following the ObamaCare case in the Supreme Court probably know that four words are at the heart of it: "established by the state." More details here, but it boils down to one question: Did the authors of the law really intend to provide tax subsidies only to enrollees of state exchanges, leaving those who joined via the federal exchange out of luck? If that's the case, as ObamaCare opponents in the court case maintain, then the law is likely doomed financially. At the New York Times today, Robert Pear interviews Republicans and Democrats directly involved with drafting the law, and the answer seems clear: Nobody thinks that was the law's intent. Some examples:

  • Olympia Snowe: "It was never part of our conversations at any point," says the former Republican senator. "Why would we have wanted to deny people subsidies? It was not their fault if their state did not set up an exchange." She called the four words “inadvertent language."

  • Jeff Bingaman: "As far as I know, it escaped everyone's attention, or it would have been deleted, because it clearly contradicted the main purpose of the legislation," says the former Democratic senator. He chalked it up to "some sloppiness in the drafting" of the bill, calling it "a drafting error."
  • Christopher Condeluci: "We failed to include a cross-reference to the federal exchange," says the Republican staff lawyer. "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."
  • Robert Greenawalt: "I do not recall any discussion of a distinction between federal and state exchanges for the purpose of subsidies," says the tax expert who advised Harry Reid. "In merging two bills that were so big, it's possible that something got left out. It would have been accidental."
(More ObamaCare stories.)

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