The decision in any appeal of Halbig—and therefore the ultimate fate of Obamacare—may rest on that question.
The left would like to say it was all a huge oversight and more or less an unfortunate and careless typo or drafting error, and that clearly Congress’s intention was to allow the feds to give out subsidies. The right says no way:
The deliberate creation of a separate section to authorize a separate federal entity is not a drafting error. The repeated and deliberate reference to one section but not another is not a drafting error. The refusal to grant equal authority to two programs authorized by two separate sections is not a drafting error. The decision to specifically reference section X but not section Y in a portion of a law that grants spending or tax authority is not a drafting error.
The clear text of the law repeatedly demonstrates that plans purchased via federal exchanges were never meant to be treated the same as plans purchased by state-based exchanges. Despite its assertions, the IRS was never granted the statutory authority to hand out tax credits related to plans purchased via a federal health exchange.
Now a video from 2012 has been unearthed featuring “Obamacare architect” Jonathan Gruber (about whom I’ve written about in depth before). In it Gruber, who should know a thing or two about Obamacare, makes it very very clear that subsidies can come only through the state exchanges. What’s more, he said it on record at least two times, one of them not in response to a question, and explained both times at significant length.
Now, of course, he’s saying dummy me, I can’t even imagine what I was thinking back then. He calls it a “speako”—like a typo, get it? But these were “speakos” that went on for a full minute, in some detail. The most that he could say that would make any sense is that he was mistaken.
It really doesn’t matter, though, whether Gruber was right or wrong. His statements can’t speak for Congress’s intent, although they would constitute a small bit of evidence about it. Intent is deduced from much more than that, but you know what? Statutes are usually considered (at least by non-liberals) to say what they mean unless the mistakes really do involve typos, which the ACA certainly does not (as Sean Davis makes clear).
It might seem a bit odd, but as a general matter, while conservative jurists are likely to look to the intent of the framers for constitutional questions, for statutes the basic process is to look at the plain language of the statute first, either ignoring Congress’ intent entirely, or turning to it only in the case of an ambiguity in the statute.
The language is not the least bit ambiguous here, and it is consistent too. There is really very little wriggle room for interpreting it otherwise. In a more normal world, the courts would simply say to the legislature, “If you didn’t mean what you wrote, go back and fix it so it says what you meant.” Now, of course, that’s not possible, because Obamacare could never be passed again, and everyone knows that. It’s that unpopular.