WaPo: Do Senate Docs/Interviews deflate Halbig balloon? (UPDATE: Or fill it up?)
2019 OPEN ENROLLMENT ENDS (most states)
Time: D H M S
Greg Sargent over at the Washington Post has done an excellent job of looking at the reality behind what I'm terming the "Halbig Conspiracy!!®" (note: if you choose to re-post this, I ask you to include both exclamation marks), by looking at the actual history of the federal exchange in the earlier drafts of the ACA bill:
...But documents from the Senate committees that worked on versions of the bill in 2009 — combined with a close look at the history of the phrase itself, and interviews with staffers directly involved in the drafting of the statutes — strongly undercut the argument that the law did not intend or provide subsidies to those on the federal exchange.
...1) The first Senate version of the health law to be passed in 2009 — by the Health, Education, Labor and Pensions Committee — explicitly stated that subsides would go to people on the federally-established exchange. A committee memo describing the bill circulated at the time spelled this out with total clarity.
...there’s no clear logical way the Senate Finance bill could plausibly have been intended to deny subsidies to those on a federally-operated exchange, since no such federally-operated exchange was envisioned under that bill’s structure.
Read the whole thing; he gives a nice timeline of the (admittedly rather tortured) history of the bill and the federal/state exchange language. In the end, as Kaiser Family Foundation VP Larry Levitt puts it:
The merger of these two approaches may have produced a sloppy end result in terms of legislative language, but the paper trail helps to show what was originally intended.”
Right, but how are we supposed to figure out what Congress wanted? There's no way of knowing what our Obamacare Forefathers originally intended! I mean, that was written back in Twenty Aught-Nine!
UPDATE: Hmmmm...interesting. According to commentor Phineasgage (as well as several people over at Sargent's actual column), his work actually servers to prove the Halbig plaintiffs point, not the governments. The reasoning is as follows:
...the well-established, logical Supreme Court precedent that when Congress includes a clause in an earlier version of a bill but then changes or removes it in the final version, that is considered conclusive evidence that Congress specifically desired the change in question, not that they intended the earlier version. Sargent has made a powerful, compelling argument. In favor of the Halbig plaintiffs' case.
He goes on to cite several other court cases which supposedly confirm this.
Meanwhile, another pro-ACA commenter on the WaPo site claims that...
Chevron case: "If the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S.A. v. NRDC, 467 U.S. 837, 842–843 (1984).
If I'm reading this correctly, it means that in the event of confusing language, it's OK for the HHS Dept. (and/or the IRS) to take their best shot at interpreting it.
OK, legal scholars, have at it: Has Sargent just proven the very case he was trying to debunk, or is that a load of hooey?