Quick update to my
ObamaCare Subsidies Case post of
yesterday: Michael Cannon has written a response, in which he claims that the
statutory history that my post unpacked helps the challengers. The crux of
his argument is the same as the one in the briefing; namely, that because there
was a provision in an earlier draft of a bill from the HELP Committee (that did
not become the ACA) that would have denied subsidies to the states if they did
not establish their own exchanges and also refused to let the government do it, that proves
denying the subsidies is logical within the structure of the current
statute. First off, as I have argued,
early drafts of bills that changed considerably before becoming law should have
little weight, so I don't think any real weight should be put on the HELP bill. That said, I read the
history the other way. As I detailed
yesterday, the HELP bill posited three options for the states and the
exchanges: 1) the states could establish
the exchanges themselves and get the subsidies; 2) the states could invite the
federal government to establish them for the states and get the subsidies; or 3) the states could refuse to have
exchanges altogether, in which case there would be no exchanges and no
subsidies for four years—at which time the federal government would come in
and, once it did, the subsidies would be
available. Nothing in the HELP bill contemplates a federally operated
exchange with no subsidies. That’s the key point; with respect to every option in the HELP bill, once the feds come in, the subsidies are available. Read it the whole thing (all of
section 3104) for yourself. (The only limitation on the subsidies, for federal and state exchanges alike, was if the state refused to apply the employer mandate to its own state government employees; that limitation never got into the final ACA and is irrelevant here.)
Further,
the final version of the ACA did not adopt option 3 above. The final version of
the ACA does not give states the option of refusing to have exchanges
altogether. But either way---including
with respect to option 3—Congress never contemplated a federal exchange with no
subsidies. And that's what makes sense--for all the reasons about how the ACA functions and its other provisions, which I and others already have amply detailed.
(Cannon also nits that I did not
provide a link to his amicus brief (which I did not do because my post referred
to his arguments on the blogs). Glad to provide it here.)
More after the oral argument...