A NY Times story published Monday focuses on the genesis of “four words” in the Affordable Care Act which are at the center of the Supreme Court case King v. Burwell.
However, the story leaves out important details which undercut the claim that drafters of the bill never considered withholding subsidies from the states.
The NY Times piece by Robert Pear quotes several sources who argue the four words in question (“established by the state”) were a mistake, a drafting error that resulted from the imperfect combination of two previous bills. Pear quotes former Senator Olympia Snowe saying, “I don’t ever recall any distinction between federal and state exchanges in terms of the availability of subsidies.” Snowe goes on to say, “Why would we have wanted to deny people subsidies? It was not their fault if their state did not set up an exchange.”
As the article states, Senator Snowe was one of the authors of the Finance bill, one of the two that were combined to create the bill that would become the ACA. So if the Finance bill had no such element restricting subsidies, what about the other bill? Did the so-called HELP bill envision any distinction between federal and state exchanges in terms of subsidies?
According to the NY Times, “Both bills called for insurance exchanges and provided subsidies to lower-income people, but the health committee measure clearly allowed subsidies in all states.” And just like that, Robert Pear has skipped over a rather significant fact about the HELP bill that is relevant to the discussion.
As Breitbart News outlined nearly a year ago, the language of the HELP bill explicitly restricted subsidies to states which had become “participating states” for up to four years. Eventually, if the state refused to set up an exchange, the federal government would step in, but for the first four years “the residents of that state will not be eligible for premium credits, an expanded Medicaid match, or small business credits.”
This seems to directly contradict the sense of Senator Snowe’s statement that no such distinction was ever envisioned. Perhaps Snowe’s comments were limited to the Finance committee bill, but if so, why didn’t the author of the NY Times‘ article mention that such a distinction was made in the competing bill? (Breitbart News contacted Robert Pear Tuesday afternoon with a question about the omission. Pear did not respond in time to be included in this article.)
Jonathan Adler, one of the architects of the lawsuit now before the Supreme Court, made this point in his response to the Times‘ piece:
As Pear recounts, there was language in the HELP bill clearly authorizing subsidies in federal exchanges, but no such language in the Finance Committee bill. What Pear fails to mention is that the HELP bill also expressly withheld subsidies in states that failed to adopt specified reforms. The staff members Pear interviewed may insist there was never any discussion of withholding subsidies, it is beyond dispute that this is precisely what the HELP bill did.
Adler concludes, “anyone who claims that the Senate never considered withholding subsidies in recalcitrant states is either a) dishonest, or b) doesn’t know what they’re talking about.”
Ultimately the intent of the drafters of the law can not be used by judges (even Supreme Court Justices) to alter its actual language. Olympia Snowe’s recollection nearly six years later is no more relevant to the language of the bill than Obamacare architect Jonathan Gruber’s comments from 2012.