Framers of Health Care Law Say Four Words Imperiling Its Future Were Mistake

The U.S. Supreme Court is considering whether low-income taxpayers can only receive subsidies for health insurance if they purchased their policies on state-run insurance exchanges, not federal exchanges. The four words at issue in the Affordable Care Act? "Established by a state." The New York Times' Robert Pear reports that the two dozen Democrats and Republicans involved in writing the law say those four words were not meant to make tax subsidies in the law available only in states that established their own health insurance marketplaces.

For example, former Senator Jeff Bingaman, Democrat of New Mexico, said the words in dispute are a "'drafting error."' Christopher E. Condeluci, who was a staff lawyer for Republicans on the Finance Committee, told Pear that, when senators drafted a backup plan to allow the federal government to establish an exchange in any state that didn't have its own, it was an oversight to not include a cross-reference to the section of the tax code providing subsidies.

But Pear notes that some Supreme Court justices, including Justice Antonin Scalia, interpret laws based not on "'what Congress would have wanted, but what Congress enacted.”'