The DC Circuit and the 4th Circuit have arrived at directly contradictory rulings on the question of whether people who reside in states that did not set up their own exchanges under the PPACA are eligible for the subsidies specified by the law. The DC Circuit has said “no”; the 4th “yes”. Unless the DC Circuit reverses itself in an en banc decision this sets the stage for the matter being brought before the Supreme Court.
The editors of the Washington Post side with the 4th Circuit:
Given the contradictions, the administration’s interpretation deserves deference. That is particularly true because the administration’s reading accords with the law’s obvious intent: to offer affordable health-care coverage to a large number of Americans.
while the editors of the Wall Street Journal agree with the panel of the DC Circuit:
In Halbig v. Burwell, the D.C. Circuit Court of Appeals held that the Administration violated the Affordable Care Act by expanding subsidies to the 36 insurance exchanges run by the federal government. The plain statutory language of ObamaCare repeatedly stipulates that these credits shall flow only through “an Exchange established by the State.” The 2-1 panel majority thus did not “strike down” part of ObamaCare, as liberals and the media claim. Using straightforward textual construction, the court upheld the law the President signed but it vacated the illegitimate federal-exchange subsidies he tried to sneak in via regulation.
The point being ignored by the Post’s editors is brought forward by the editors of the WSJ:
Distinguishing between state and federal exchanges was no glitch or drafting error. In 2010 Democrats assumed that the unpopularity of ObamaCare would melt away and all states would run their own exchanges. Conditioning the subsidies was meant to pressure Governors to participate. To evade this language, the Internal Revenue Service simply pumped out a rule in 2012 dispensing the subsidies to all. The taxmen did not elaborate on niceties such as legal justification.
We know that the distinction wasn’t a “glitch or drafting error” because the issue was stated in the terms described by the WSJ by Sen. Max Baucus, the principle sponsor of the Senate bill that would become the PPACA, among others, contemporaneously with the passage of the law. By the way, you might be interested in this handy guide to the “Halbig” cases.
While much of the commentary is arguing the policy, the real question should be one of the law. Will we have a law that is circumscribed by the letter of the law and the expressed intentions of its authors or will we have a law that is determined by the unstated intentions and hopes of its supporters?
As Wittgenstein explained many years ago, it is impossible to make a perfectly unambiguous statement using natural language. Consequently, ambiguities in law are inevitable in every law and the longer and more intricate the law, the more ambiguities there will be. That means that if ambiguity in the law allows any possible interpretation, there is no law as we’ve known it. As I’ve written elsewhere, legislate in haste, repent at leisure.
Now let the courts decide.