The importance of words

CiF poster Scott "the most" Lemieux is aggrieved at today's ruling in D.C. that puts something of a crimp in the Affordable Care Act (aka Obamacare):

Up first: an outrageous two-to-one decision by a panel of the Court of Appeals for the DC Circuit ruling against sensible subsidies that real people need, based on what we can charitably called the "reasoning" of the two Republican nominees on the three-judge panel – the opinion was written by an appointee of George HW Bush, along with a judge nominated by his son.

I do like the "play the man, not the ball" approach here, by the way. Mr. Lemieux is appalled that in Halbig vs Burwell the D.C. Circuit judges have thrown a major spanner in the works of the Obama administration's flagship Act. Since Mr. Lemieux is a professor of political science at a college in New York, you may safely assume that he knows how the legal process works and has the proper perspective to come to such a judgement.

What is this horrendous decision which has so appalled Mr. Lemieux? Let us consult the blogging lawyers at the Volokh Conspiracy:

In a 2-1 opinion, the Court held that the Internal Revenue Service regulation authorizing tax credits in federal exchanges was invalid. Judge Griffith, writing for the court, concluded, "the ACA unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges 'established by the State.'" In other words, the court reaffirmed the principle that the law is what Congress enacts — the text of the statute itself — and not the unexpressed intentions or hopes of legislators or a bill's proponents.

What made the Affordable Care Act affordable for many people was that for low-to-medium incomes you could get tax credits to subsidise the (fairly expensive) policies available on the exchanges. Now the original idea was for most states to run their own exchanges, but more and more of them have used the shared federal exchange since it turns out that developing and running an exchange is fairly hard. Unfortunately, the ACA itself only allowed tax credits for insurance purchased on exchanges established by the State, which was the point of contention in this case - should the IRS be allowed to issue tax credits to people buying insurance on federal-run exchanges, which is the case in more than half of the states. The D.C. Circuit said "no, you can't apply the law as you wish it was written, you have to apply the law as it is." Apparently this approach is too radical and subversive for Mr. Lemieux and he wishes to blame the D.C. Circuit rather than (say) the original drafters of the ACA.

From the actual court decision:

Appellants argue that if taxpayers can receive credits only for plans enrolled in “through an Exchange established by the State under section 1311 of the [ACA],” then the IRS clearly cannot give credits to taxpayers who purchased insurance on an Exchange established by the federal government. After all, the federal government is not a “State,” see 42 U.S.C. § 18024(d) (defining “State” to “mean[] each of the 50 States and the District of Columbia”), and its authority to establish Exchanges appears in section 1321 rather than section 1311, see id. § 18041(c)(1).

There was a lot of controversy at the time the ACA was passed due to the very short time between it being presented and being rammed through Congress and the Senate. Democratic senator Nancy Pelosi told us not to worry about the contents of the bill at the time:

But we have to pass the bill so that you can find out what is in it – away from the fog of the controversy.

Well, now we've all found out. Perhaps a little more scrutiny at the time of passing would have been in order so that problems like the tax credits language could have been spotted before being signed into law. This is why complex laws are bad - they cause problems for everyone including those that they were intended to help.