Four words at heart of King v. Burwell a drafting error
The Affordable Care Act uses the phrase through an exchange "established by the State" to describe the circumstances in which consumers can acquire insurance with federal subsidies.
However, after interviews with over two dozen Democrats and Republicans who wrote the ACA, the New York Times reported that the phrase was, perhaps, inadvertent language.
"As far as I know, it escaped everyone's attention, or it would have been deleted, because it clearly contradicted the main purpose of the legislation," said former Sen. Jeff Bingaman (D-N.M.). He added: "In all the discussion in the committees and on the floor, I didn't ever hear anybody suggest that this kind of distinction between federal and state exchanges was in the bill."
When lawmakers first crafted the ACA, the idea of denying subsidies for those who purchased coverage through federal exchanges was "never discussed," Charles M. Clapton, a lawyer who worked on both committees for Senator Michael B. Enzi, (R-Wy.), told the Times.
The law includes a fallback plan for the federal government to establish an exchange in a state that did not do so. But this provision "failed to include a cross-reference to the federal exchange," Christopher E. Condeluci, who was a staff lawyer for Republicans on the Finance Committee, told the Times. "In my opinion, due to a drafting error, we overlooked it. It was an oversight. Congress, in my experience, always intended for the federal exchange to deliver subsidies."
The four words were placed in the law early on and may have been left in there as the legislation evolved. But had Senate Majority Whip Harry Reid (D-Nev.), who finalized the legislation, adopted a provision from previous draft versions--a state with a federal exchange "shall be deemed to be a participating state," and that its residents could receive federal subsidies to help pay premiums--the King v. Burwell debacle may never have surfaced, noted the Times.
- here's the New York Times piece
Briefs: King v. Burwell ruling against subsidies would be 'devastating'
Supreme Court hears King v. Burwell arguments
King v. Burwell Supreme Court case: What you need to know [Special Report]