The Affordable Care Act: Did the Author Goof?

I was thinking about the recent King v. Burwell U.S. Supreme Court case yesterday.  Right before I went to bed, I was listening to some of the oral arguments and the questioning by Supreme Court justices on C-Span.

King v. Burwell is about the Affordable Care Act.  Under the Affordable Care Act, states are supposed to set up their own health insurance exchanges.  If they do not do so, then the federal government comes in and establishes a health insurance exchange for them.  The question that was before the court was this: Can people in states that have the federally-established exchanges legally receive government subsidies/tax credits to purchase health insurance off the exchange?  The reason that this was an issue was that the Affordable Care Act says that people can receive subsidies to buy insurance from the exchanges established by the state: it does not explicitly say anything about the federally-established exchanges there.

Let me say at the outset that, practically-speaking, I am happy that the Supreme Court decided as it did.  In a 6-3 decision, the U.S. Supreme Court ruled that people in states that have the federally-established exchanges can still receive subsidies to pay for health insurance.  That means that a lot of people can keep their health insurance and be able to pay for it.

But, to be honest, there was a part of me that could sympathize with Justice Antonin Scalia’s dissent.  The law says exchanges established by the states.  Now, do I believe that those who voted for the law expected for those with the federally-established exchanges to receive subsidies, too.  I do agree with Justice John Roberts’ statement that the purpose of the Affordable Care Act was to expand access to health insurance, and so allowing those with the federally-established exchanges to receive subsidies accords with the spirit and goal of the law.  I could find myself nodding my head in agreement with some of what the U.S. Solicitor General, Donald Verrilli, said in his oral arguments, which I was listening to last night: parts of the Affordable Care Act would not make sense if subsidies could not go to people who live in states that have the federally-established exchanges.  Still, the law referred to exchanges established by the states.

Personally, I think that whoever wrote the Affordable Care Act goofed.  The author made a careless oversight.  The author should have referred to exchanges established by the states or the federal government, but the author did not do so.  The author probably meant that, but that is not what the author put into the law.  The question then becomes: Should we go with the intent of the law, or with the text of the law?  That is probably a complex legal question, in a number of cases.  The intent behind the law certainly enters legal discussions.  Yet, so do the technicalities of the text itself, which is why lawyers are able to find loopholes.  

What somewhat intrigued me last night was that the lawyer who was arguing that the subsidies only applied to the state exchanges seemed to be saying that his view actually accorded with the intent of the Affordable Care Act: that whoever wrote the Affordable Care Act actually intended for people with the state exchanges to receive subsidies, while those with the federal exchanges do not.  At least that was my impression of what he was saying, and I have to admit that he was harder for me to follow than the U.S. Solicitor General was.  This lawyer did not seem to me to be saying that the author of the Affordable Care Act goofed, but rather than the author wrote that part about the state exchanges by design.  Justice Scalia, as far as I could tell, was the only one who was saying that the Affordable Care Act is not exactly an elegantly-written law: Scalia could have been leaning in the direction of saying that its author goofed.

I’ll leave the comments on.  Feel free to share your opinion.  Please do so tactfully, and remember that I am not a lawyer!