On the Obama administration’s account of the role of exchange subsidies in Obamacare, Congress messed up when it limited subsidies to insurance obtained on “an Exchange established by the State under section 1311.” On that account, Congress should instead have used the phrase “an Exchange.” But rather than candidly acknowledge that its theory means that Congress messed up, the Obama administration instead claims that the phrase “an Exchange established by the State under section 1311” is, believe it or not, a “term of art.”
I expect that some of the justices will have fun with that claim at the oral argument this morning in King v. Burwell.