One of the more partisan among the Washington Post’s coterie of left-leaning commentators yesterday issued what he considered to be a shot across the Right’s bow. In a piece titled, “Senate Documents and Interviews Undercut ‘Bombshell’ Lawsuit against Obamacare,” the blogger Greg Sargent attempted to “strongly undercut the argument that the law did not intend or provide subsidies to those on the federal exchange.” His case was a reasonably simple one: that the ambiguity within the Affordable Care Act is the result not of legislative equivocation or of disparate political intentions, but of ham-fisted execution. Obamacare, Sargent notes, is in fact the product of two separate health-reform bills that were eventually — and problematically — merged together. The first of these, which was devised and passed by the Senate’s HELP Committee, provided subsidies for state and federal exchanges. The second, written and passed by the Senate Finance Committee, provided subsidies only for state exchanges. When the bills were put together, the HELP bill’s more expansive language gave way to the Finance bill’s more restrictive provisions. Thus did the contentious “established by the State” language find its way into a law intended to fund exchanges administered at the federal level as well.
I shall return to the merits of this claim in a moment. First, though, I should say that if Sargent wants to do Halbig’s champions any meaningful harm, he will have to engage with a different question. There is a reason that the government’s lawyers have not endeavored to argue that the present contretemps is the inadvertent product of a messy merger or a scrivener’s error, and that is that doing so would almost certainly have been unprofitable in court. Wisely, the Obama administration’s case rests on the presumption that the relevant language is ambiguous and that this ambiguity should of right be resolved in its favor. Sargent’s case, by unhappy contrast, is predicated on the idea that the law as written is a mess and that critics should attempt to divine what Congress really wanted from the legislative record and the testimony of staffers. This, I’m afraid, is a considerable mistake.
Indeed, insofar as Sargent has managed to achieve anything at all, by rehashing the legislative history he has helped rather than hurt those whom he wished to “undercut.” Sargent’s timeline confirms both that the HELP Committee’s bill “explicitly stated that subsides would go to people on the federally-established exchange” and that that bill was sufficiently authoritative to have been passed out of a Senate committee — both of which facts, Ace of Spades’ Jeff B. noted yesterday, present Halbig’s critics not with an opportunity but with a problem. “If explicit language was in an earlier version of a bill but dropped from the final version,” he wrote, “the court will treat that as proof it was removed on purpose.” Quite so. As Red State’s Dan McLaughlin points out, this principle is well-established in American legal precedent, the Supreme Court having explained bluntly in 1987 that there are few jurisprudential conceits more “compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.” Or, as Patrick Gaspard might have said, “It’s the canon of statutory construction, b*****s.”
Fatal as this is to Sargent’s case, the glee that his mistake has provoked is overwrought. In one form or another, everything in his timeline has already been documented in either the array of amicus briefs that have informed the case thus far or in the politically tinged debate that has surrounded the litigation since the initial decision came down. In consequence, the post is more interesting for what it left out — which, namely, is the context in which Obamacare was passed. Certainly, the law is the bastard child of two divergent bills — one produced by Senate Finance, the other by HELP. Certainly, there is some uncertainty as to what legislators and their aides were doing when they attempted to reconcile them. But, contrary to Sargent’s breathless insinuation, the resultant hybrid was not pushed together haphazardly on one, fatal occasion, but tweaked over a period of time — sometimes deliberately, sometimes less so. A one-night job this was not.
In an attempt to establish intent, Sargent quotes Yvette Fontenot, “a lead Finance staffer who was directly involved in the merger of the bills”:
During the merger of the two bills, we layered the HELP Committee language that established a federal fallback on top of the Finance Committee language that included “exchange established by the state.” The result was the tax credits were to apply to all exchanges, both state and federal.
Frankly, this smacks of post-rationalization and oversimplification. It is easy to forget this in the heat of political passion, but when the HELP and Finance bills were fused together, nobody expected the result to become law. Before Congress ever had a chance to address the bill’s manifold inconsistencies, Scott Brown was elected to the Senate in Massachusetts, drafting was brought screeching to an ignominious halt, and the Democratic party was forced to rush through what it had managed to contrive up to that point. This, conveniently enough, is missing from Sargent’s account of the legislative history.
And what of that account? Well, once again, it serves primarily to aid rather than to undercut the case against the law. Not only would the HELP Committee bill that Sargent refers to in detail have given the states four years to establish exchanges before the federal government could have stepped in with its own, but a Senate memo that Sargent links to explains in no uncertain terms why it did this. “States can establish Gateways as quickly they wish,” the memo records, “thus qualifying their residents for premium credits.” Elsewhere, it explains that “until a state becomes either an establishing or participating state, the residents of that state will not be eligible for premium credits.” (The Finance bill contained provisions withholding subsidies, too.)
The majority opinion in Halbig drew a line between the intentions of the HELP committee and the subsidy structure in Obamacare, and concluded that “members of Congress at least considered the notion of using subsidies as an incentive to gain states’ cooperation.” Advocates of the lawsuit will presumably be pleased to observe that even a progressive stalwart such as Sargent is happy to acknowledge the connection. Immaterial as it may be to the case, it is important to the discussion of that case. The next time that one of Halbig’s many discontents scoff derisively at the suggestion that Obamacare’s architects would have deliberately restricted subsidies to exchanges that were run by the states, I daresay that his interlocutor will link with glee to Sargent’s little corner of the web, pointing happily to what amounts to little more than a blunt and inadvertent acknowledgment that a congressional committee involved in the law’s production did precisely that.
— Charles C. W. Cooke is a staff writer at National Review.