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.
#59 | POSTED BY JEFFJ
Let's beat on JeffJ's argument a little.
First, there isn't a single note anywhere in the Congressional record anywhere that this was the intent of the drafters or Congress. Not one. In fact, there is substantial evidence to the contrary.
In addition, JeffJ and others like to reference Medicare/Medicaid penalties. There is not only direct legislation for them but Congressional record is literally hundreds of pages relating to how the penalty there would work. Why none for this so called tax credit penalty?
Second, the term "Exchange" is defined under definitions sections of the Act, section 1563(b) as "an American Health Benefit Exchange established under section 1311." Section 1311(d)(1) states that an "Exchange shall be a governmental or agency or nonprofit established by a State." All "Exchanges" are defined as State exchanges established under 1311.
This is not uncommon for Acts or Statutes to define things in a very particular way to make a cohesive piece of law without the need to continue creating multiple sections.
Third, If a state does not set up an Exchange, section 1321(c) indicates the Secretary "shall...establish and operate SUCH EXCHANGE within the State..." The reference internally to section 1311 is clear further. All Exchanges are set up under section 1311 by the actor indicated in section 1311 or by an alternative actor laid out in section 1321.
The literal translation is that all exchanges set up by the Secretary with duties afforded under 1321 are set up under rules in 1321 and rules set up in 1311 by 1321's reference and incorporation.
Fourth, and this just gets funny, JeffJ argues that there is no evidence that Congress meant the credits for Federal exchanges. Except the Section 36B(f), the Reconciliation of Credit and Advance Credit actually refers to credits for both Exchanges operated under 1311 and 1321 actor duties.
Section 1312 is also fun. It states that only a qualified individual may purchase a health plan and a "Qualified Individual" is a person who "resides in the State that established the Exchange." Either a State Exchange means that a Federally operated Exchange is still a State Exchange and the Feds are just stepping into the shoes of the State or 34 states that didn't start their own exchanges do not have any "Qualified Individuals" able to even purchase insurance through the Exchanges.
Literally, if JeffJ is right, there are only 16 Exchanges legally in the country and no one can purchase insurance via a Federally created Exchange.
By the way, to criticize Democrats on this one is a bit ridiculous. Not only are we talking about a 900 page bill, which when of that size all bills have pretty serious ambiguities, but also that not a single Republican pointed out this issue and all understood via Congress record that the subsidies applied to all Exchanges.