We have written here and elsewhere about the King v. Burwell case, in which a panel of the 4th Circuit Court of Appeals held that the Affordable Care Act allows the federal government to subsidize participants in the federal Obamacare exchange as well as the state exchanges. In Halbig v. Burwell, decided at the same time as King, a panel of the D.C. Circuit Court of Appeals went the other way, holding that the statute permits the federal government only to subsidize participants in the state exchanges.
If you want to read a reasoned legal analysis of these conflicting opinions, follow the link above. If you want to read a crude, ignorant, partisan screed, then–as usual–Paul Krugman is your man. Krugman’s column is titled “Death by Typo: The Latest Frivolous Attack on Obamacare.” His theory is that the Affordable Care Act suffers from a “typo” that should be corrected by the courts.
Krugman calls it an “obvious typo,” as a result of which:
if you look at the specific language authorizing those subsidies, it could be taken — by an incredibly hostile reader — to say that they’re available only to Americans using state-run exchanges, not to those using the federal exchanges.
Funny thing, though: Krugman never quotes the language that represents the “typo” that could lead an “incredibly hostile reader” to think that subsidies are limited to state-run exchanges. Gee, I wonder why? This is what the relevant portion of the Affordable Care Act, 26 U.S.C. § 36B(b)(2), says:
The premium assistance amount determined under this subsection with respect to any coverage month is the amount equal to the lesser of—
(A) the monthly premiums for such month for 1 or more qualified health plans offered in the individual market within a State which cover the taxpayer, the taxpayer’s spouse, or any dependent (as defined in section 152) of the taxpayer and which were enrolled in through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act….
Now, you don’t have to be an “incredibly hostile reader” to think that “an Exchange established by the State” means an exchange established by the state. But Krugman never acknowledges that he wants the courts to rewrite the relevant provisions of the ACA. As always, those who don’t see things his way–here, those who read plain English to mean what it says–are malevolent dopes.
Without ever making a legal argument, Krugman engages in his usual bombast:
It’s a ridiculous claim; not only is it clear from everything else in the act that there was no intention to set such limits, you can ask the people who drafted the law what they intended, and it wasn’t what the plaintiffs claim.
The incorrigibly ill-informed Paul Krugman may be the last person in America who doesn’t know that the principal architect of Obamacare, Jonathan Gruber, is on video saying:
I think what’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits.
In other words, the Halbig court was correct. You can watch Gruber explain why the ACA means what it says here.
But more fundamentally, the whole point of the rule of law is that the law is written. The law means what it says, not what some politician claims, in an interview after the fact, he had in mind but forgot to mention. If the words of a law don’t govern, and instead bullying “interpretations” by crude partisans like Paul Krugman supersede the language of statutes, we no longer live under the rule of law.
This, too, is relevant: where statutes are ambiguous (although this one doesn’t seem to be) courts look to legislative history, in the form of committee hearings and floor debates, to shed light on what legislators intended. But in the case of Obamacare, that normal legislative process wasn’t followed. The bill, as passed, never went through any committee in either the House or the Senate, nor was there any substantial floor debate. No one ever asked the question, “So, I see here that only participants in the state-run exchanges will be eligible for subsidies. Why is that?”
The reason is that the Affordable Care Act was drafted in secrecy by lobbyists from the health care industry and Congressional aides. It was presented–1,000 pages or whatever the total came to–as a fait accompli and voted on before anyone in Congress had an opportunity to read it. Various representations were made about what the law would do, but what it actually said, no one knew. In Nancy Pelosi’s immortal words, we had to pass it to find out.
So now it’s been passed, and we have found out that only participants in state-run exchanges established under § 1311 are eligible for federal subsidies. You can read § 1311 here. It plainly applies only to exchanges set up by one of the states, not by the federal government; e.g.:
(1) In general.–An Exchange shall be a governmental agency or nonprofit entity that is established by a State.
That seems awfully clear to me.
Krugman goes on to bloviate in his usual fashion; I will spare you most of it. But here is his conclusion:
So let’s be clear about what’s happening here. Judges who support this cruel absurdity aren’t stupid; they know what they’re doing. What they are, instead, is corrupt, willing to pervert the law to serve political masters. And what we’ll find out in the months ahead is how deep the corruption goes.
So judges who think that when Congress writes the word “state” in a law, it means “state,” are cruelly absurd, corrupt perverters of the law who serve political masters. This is the kind of insanity to which Paul Krugman and his fellows on the far Left so often descend.
One more thing: Paul, you poor dummy, please link to this post from 2005 one more time!