Obamacare’s Survival Threatened by a ‘Drafting Error’

Robert Pear in the New York Times: “They are only four words in a 900-page law: ‘established by the state.’”

“How those words became the most contentious part of President Obama’s signature domestic accomplishment has been a mystery.”

“The answer, from interviews with more than two dozen Democrats and Republicans involved in writing the law, is that the words were a product of shifting politics and a sloppy merging of different versions. Some described the words as ‘inadvertent,’ ‘inartful’ or ‘a drafting error.’ But none supported the contention of the plaintiffs, who are from Virginia.”

“The plaintiffs say the law allows subsidies only where marketplaces have been ‘established by the state.’ It is a distinction that those who drafted the law say they did not intend to make.”

“At the Finance Committee, which thrashed out its version of the bill in September and October 2009, senators initially assumed that all states would set up exchanges, so they added a section to the Internal Revenue Code to provide subsidies, in the form of tax credits, for insurance purchased through an exchange.”

“Senators authorized a backup plan to allow the federal government to establish an exchange in any state that did not have its own, but they failed to include that language in the section of the tax code providing subsidies. ‘We failed to include a cross-reference to the federal exchange,’ [Christopher Condeluci, Republican staff lawyer] said. ‘In my opinion, due to a drafting error, we overlooked it.'”


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