Drafting error vs. drafting miscalculation

Sean Davis, a former congressional staffer, examines the claim that the provision in Obamacare limiting subsidies to those participating in state exchanges was the product of “drafting error.” He finds it laughable.

I discussed what a legislative drafting error looks like here. Davis sees it the same way:

When I worked in the Senate. . .it was not uncommon to find obvious errors in bills and amendments. Sometimes you would see a date written as 3015 instead of 2015. Sometimes a non-existent section would be referenced, or a section number in a table of contents might be wrong. Other times, you might see a dollar figure that had too few or too many zeroes (seriously, that happened).

You might even find a misspelled word or an incorrect line number every now and again. Those were true “drafting errors,” the typos of the legislative world.

The legislative language at issue in Halbig v. Burwell is an entirely different matter:

The deliberate creation of a separate section to authorize a separate federal entity [the federal exchange] is not a drafting error. The repeated and deliberate reference to one section but not another is not a drafting error.

The refusal to grant equal authority to two programs authorized by two separate sections is not a drafting error. The decision to specifically reference section X but not section Y in a portion of a law that grants spending or tax authority is not a drafting error.

Clear evidence that Congress did not commit a drafting error can also be found in the events that followed the passage of Obamacare:

When I witnessed drafting errors that went uncorrected and ended up being codified in law, I saw the same behavior over and over again: recognition of the error, followed by an immediate attempt to correct it. Usually the corrections were done via an uncontroversial “technical corrections” bill. They were almost always drafted and passed within a couple of days or weeks of the original law’s passage.

But that’s not what we saw with this alleged “drafting error.” No attempt was made to rectify the alleged “error.”

The timeline tells it all. Obamacare was signed into law in March of 2010. It wasn’t until August of 2011 that the IRS decided to make tax credit subsidies available to plans purchased on federal exchanges. That’s a span of 16 months—an awfully long time to recognize and address a “drafting error.”

What occurred during these 16 months that caused Democrats to discover the error of their ways? As of August 2011, only ten states had established Obamacare exchanges and 17 had rejected them — that’s what.

The subsidies for those participating in state exchanges were intended to induce states to establish such exchanges. No such incentive was needed to bring about the establishment of the federal exchange; they were mandated by the Obamacare legislation itself.

By August 2011, Team Obama realized that its plan had backfired. The subsidy incentive wasn’t inducing many states to create exchanges, and this meant that subsidies would not widely be available.

To avoid this draconian consequence of Democrat miscalculation, the legislation had to be fixed. Congress wasn’t about to fix it, so the IRS did.

In doing so, the IRS did not pretend it was correcting a drafting error. Rather, as Davis emphasizes, the IRS claimed the opposite: that the text clearly endorsed the IRS interpretation. In its May 2012 announcement of the rule in question, it stated:

The statutory language of section 36B and other provisions of the Affordable Care Act support the interpretation that credits are available to taxpayers who obtain coverage through a State Exchange, regional Exchange, subsidiary Exchange, and the Federally-facilitated Exchange. . . .

Accordingly, the final regulations maintain the rule in the proposed regulations because it is consistent with the language, purpose, and structure of section 36B and the Affordable Care Act as a whole.

The validity of the IRS’s rule must stand or fall on this assertion. And given the clarity of the statutory language, no court acting in good faith could sustain the IRS’s rule.

Absent a drafting error in the true sense, black can only black; it cannot mean white.

Responses