Cato Institute: Seven Myths about King v. Burwell

Of the seven myths detailed in Michael Cannon's commentary on  King v. Burwell #3 and #5 are most compelling:

...Myth #3: King is based on “a drafting error.”

The requirement that tax-credit recipients enroll in coverage “through an Exchange added by the State” appears twice explicitly in the tax-credit eligibility rules, and a further seven times by cross-reference. It was added to the text at multiple stages of the legislative process, including under the supervision of Senate leaders and White House staff.

That’s not a drafting error. Not even the Obama administration argues it was....

...Myth #5: Congress intended to offer tax credits in federal exchanges.

The most significant myth to gain currency in these cases, the one that underlies and animates all opposition to thereto, is a theory of congressional intent without any evidentiary basis.

All available contemporaneous evidence points to the conclusion that Congress intended to withhold exchange subsidies in federal exchanges.

Many bills Congress considered in 2009-2010 offered exchange subsidies in all states. Other bills offered exchange subsidies only in states that cooperated on implementation. Some members undoubtedly preferred the former type. The one that passed Congress, however was the latter type. The fact that that was the only bill that could pass Congress means that members voting for the ACA intended to enact this restriction, even if they ideally would have preferred another bill.

The only contemporaneous statement that speaks directly to this question supports the plain meaning of the text. In 2010, former Texas Supreme Court Justice Lloyd Doggett, a Democratic member of the House of Representatives, warned his party’s leaders that even though the ACA provided for federal fallback exchanges, states could still categorically block their residents from receiving “any benefit” under the ACA’s exchange provisions simply by refusing to establish an exchange. The other ten Texas Democrats in the House of Representatives joined Doggett’s warning. All eleven would later vote to enact the ACA without modification to that feature.

Meanwhile, despite three years of searching for contemporaneous evidence that any member of Congress intended for the ACA to offer tax credits in federal exchanges, the government has come up empty.

It is not material that ACA authors Max Baucus, Tom Harkin, and Harry Reid now claim they intended for the law to offer subsidies through federal exchanges. These claims came only post-enactment, after the contrary statutory language proved to be a political liability. Nor is it material that Sander Levin, George Miller, Nancy Pelosi, and Henry Waxman say the same, because they played no role in the ACA’s drafting. What’s more, each of these members of Congress also claimedthat if you like your health plan, the ACA lets you keep it – thus demonstrating either (A) they do not understand the law, or (B) they are willing to lie to protect it.

In the face of contemporaneous evidence to the contrary and the absence of any contemporaneous support, the theory that Congress intended the ACA to offer tax credits in federal exchanges appears to be a post hoc fabrication...