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October 21, 2013 3:46 PM The Gift to the GOP That May Keep on Giving

By Ed Kilgore

It’s easy to write off the continued litigation against the Affordable Care Act as politically-motivated harassment, since that’s what’s behind it. But there is a new challenge that has a certain dangerously clear rationale, even though it violates the obvious (if not terribly well expressed) legislative intent behind the law. The Wall Street Journal’s Joe Pallazolo has the lowdown:

Federal judges in Washington, D.C., and Virginia will consider whether the text of the statute prevents the administration from offering subsidized health insurance to millions of low- and middle-income Americans.
The 2010 federal law says people qualify for subsidies if they obtain health insurance through an exchange “established by the state.” But dozens of states refused to set up their own marketplaces, leaving the task to the federal government.
The question before the courts is whether the Affordable Care Act’s wording is a drafting mistake contrary to what Congress intended—or a barrier to subsidies for coverage in the 36 states where the federal government is running some or all of the online exchanges.

The law does clearly authorize federal exchanges as a backup when states refuse to set up their own. But it did not explicitly authorize premium subsidies along with them.

Normally this sort of question could be easily resolved with a glance at the legislative history of the law. But thanks to the scramble that occurred after Scott Brown’s election to the Senate eliminated a Democratic filibuster-proof majority, the House passed a hastily-finalized Senate bill without the usual back-and-forth refinement, with some final money-related adjustments being made via the budget reconciliation process. This eliminated the usual committee and conference reports that would have clarified that (of course) the subsidies were meant to be made available to consumers purchasing insurance through federal as well as state exchanges.

So the suit asks judges to choose between logic and a literal reading of the law, which is always perilous.

If this turns out to represent a real problem for ACA, we can conclude that Martha Coakley’s failed Senate campaign in the 2010 special election remains the gift that keeps on giving for the Republican Party.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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