I admire the tenacity of republicans

[Bricker]

@John_Mace

Bricker:

What do you think of RP’s analysis in the original thread on this subject?

@Richard_Parker

In short, the question is whether one reasonable reading of the language of the statute as a whole is that it provides subsidies for federal-run exchanges. The only serious argument to the contrary is the undefined verb “established by the State,” but when you put that up against all the other language that talks about the feds essentially replacing the state in every way if the states fails its obligations, and there being no very good reason for not offering the subsidies in 1311 exchanges established by the feds, I think the Administration is not too concerned.

I think his analysis is flawed. The only serious argument is not that the verb “established” is undefined. It’s that the language relating to tax credits specifically allows them only when an exchange is established by the State, and the statute further specifically defines “State” as “any one of the fifty United States and the District of Columbia.” (Another point that no one in the thread bothered to mention, despite plaintive cries that “State” could mean the federal government.)

He ultimately says that the courts should look to the overall purpose and forget the words.

But the words show the purpose. Congress intended to incentivize the state exchanges. They expected that states would all have exchanges. That didn’t happen. The courts should not re-write the statute to fix a mistake of that nature.