The Intent of Congress Was To Make Subsidies Available on the Federal Exchanges. They Put it in the Text.Comments
On the one hand, this is useful reporting:
Doug Elmendorf, the director of the nonpartisan CBO at the time of the law’s drafting and passage, says the idea that the subsidies would be limited to states creating their own exchange was never brought up while his office was estimating the cost of the law.
“It was a common understanding on the Hill, again on both sides of the Hill, on both sides of the aisle, in late 2009 and early 2010, that subsidies would be available through the federal exchange as well as through state exchanges,” Elmendorf said in an interview at the Peterson Foundation fiscal summit.
“And I’m confident in saying that because CBO’s analysis always worked under the view that subsidies would be available under the federal exchange.”
Despite all the scrutiny of his office’s cost projections, he said, the assumption of subsidies being available on both types of exchanges was never questioned, he said.
“Our analysis was subject to a lot of very intense scrutiny and a lot of questions, and my colleagues and I could remember no occasion on which anybody asked why we were expecting subsidies to be paid in all states regardless of whether they established their exchanges or not,” he said.
Sure, you could look at evidence like “every legislator in Congress and every relevant state official.” But surely it makes more sense to misquote President, Speaker of the House, Senate Majority Leader, Secretary of State, Prime Minister, and new host of the Late Show on CBS Jonathan Gruber instead.
The analysis, on the other hand, is not so good:
However, congressional intent is not the entire consideration. The Supreme Court’s justices vary in how much they take intent into account.
The more conservative justices are more inclined to look at the plain text of the law itself, which the challengers argue clearly limits the subsidies to state exchanges.
This, of course, is the Card-Says-Moops version of the con — whatever Congress intended, the “text” says that subsidies are only available on exchanges established by state governments. But it doesn’t. You can arrive at such a conclusion only by using methods of statutory interpretation nobody — including Scalia — would defend in any other context. You don’t construe statutory provisions by reading them in isolation from the structure and purpose of the statute as a whole. There’s only a contradiction between the text and the intent of Congress if you’re willfully trying to create one.