July 24 2014

Halbig: Why the Left's "Drafting Error" Shtick Is Laughable

Charlotte Hays

One of the arguments from ObamaCare supporters against the D.C. Appeals Court’s Halbig ruling--which could be devastating for the future of ObamaCare--is that the judges ruled on what was essentially a drafting error.

According to the "drafting error" theory, it was the intent of the Affordable Care Act that people could receive subsidies to help them with their health insurance premiums, regardless of whether they signed up through a state or the federal exchange. Sure, the law said that the subsidies were only for state exchange customers. No matter, that’s just a technicality, a drafting error.

The liberal blogs quickly signed onto the “drafting error” shtick.  From a Salon blog: “New O-care setback: ‘Republicans are trying to take away health insurance from millions based on a drafting error.’” A blogger called Jamelle Bouie: “The ‘judicial activism’ tweet wasn’t snark. What else do you call gutting a major reform on the basis of a drafting error?”

To believe that what was addressed in Halbig was a mere drafting error, you have to have a mighty expansive notion of what a drafting error is.

Sean Davis addresses the left's “drafting error” mantra over at The Federalist.  As a former chief investigator for Senator Tom Coburn,  Davis has read through an enormous number of appropriations bills and drafted amendments to them. He knows that these documents sometimes contain drafting errors: a wrong date, a reference to a non-existent section, or a dollar figure that had two few zeroes.

These are true drafting errors, and errors of this sort were decidedly not what the court dealt with in Halbig. As noted, the Affordable Care Act established subsides for state exchange sing-ups. When, however, only fourteen states successfully created exchanges, the IRS helpfully jumped in with the a rule that said that people who signed up on the federal exchange could also obtain subsidies.  But is that legal? And, more to the point of this blog, should the ACA’s restriction of subsidies to state sign-ups be regarded as a mere drafting error?

Davis writes:

Let’s take a step back to see how plausible that explanation is. There are two types of exchanges: state-established, and federally established. The statutory authority for state-based exchanges comes in section 1311 of Obamacare. The statutory authority for a federal exchange in the event that a state chose not to establish one comes from section 1321(c) of Obamacare. Right off the bat, we have two discrete sections pertaining to two discrete types of health exchange. Was that a “drafting error”?

Then we have the specific construction of section 1321(c), which allows for the creation of a federal exchange. Nowhere does this section say that an exchange created under its authority will have the same treatment as a state-based exchange created under section 1311. At no point does it say that section 1321 plans are equivalent. Why, it’s almost as though the exchanges and the plans offered by them were not intended to receive the same treatment. Was that another “drafting error”?

Most important, we have the sections of the law providing for tax credits to help offset the cost of Obamacare’s health care plans: sections 1401, 1402, 1411, 1412, 1413, 1414, and 1415. And how do those sections establish authority to provide those tax credits? Why, they specifically state ten separate times that tax credits are available to offset the costs of state health exchange plans authorized by section 1311. And how many times are section 1321 federal exchange plans mentioned? Zero. Was that yet another “drafting error”? …

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.

Davis regards the IRS’ intervention as “a last-ditch attempt to paper over the law’s serious structural flaws.”

The Affordable Care Act passed without a single Republican vote. Its passage required novel legislative maneuvers. If the Democrats had been willing to listen to and negotiate with Republicans, the health care bill would have been very different.

But a compromise is not what they wanted, and with every passing day, it becomes clearer that a bill passed largely unread is also largely unworkable.

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