Drudge Retort: The Other Side of the News

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Fact is, the statute is unambiguous. The bill was signed into law by Obama in March of 2010. The Democrats didn't lose the House until January of 2011. We know that none of the Democrats actually read the bill before they passed it but did not a single Dem congressional aid or staffer not read the law between the time it was passed and the time they lost the House? "Drafting errors" happen all of the time and are fixed quickly and quietly through new legislation all of the time. This wasn't a drafting error. It was a carrot/stick to cajole the states to set up their own exchanges. The reason Mrs. Snowe doesn't recall any discussions of subsidies not being made available was because it was believed that this carrot/stick would result in all states setting up their own exchanges.

#4 | POSTED BY JEFFJ

Unambiguous: I'm not sure you understand what this term means.

There are several problems:
1. Plaintiff's provide no evidence ever that the credits were intended for only state exchanges. Not one shred of evidence other than the wording of the Act was submitted.
Why is this a problem? Because if that was the intention, there should be some evidence in the Constitutional record where someone made this argument. But there isn't in the Court record.
2. The phrase is "established by the State." But it is not "Only in exchanges established by the State."
Why is this a problem? A burden exists to prove that the phrase was meant to disallow credits in exchanges established by the Federal government. On its face, it appears simple. But when the phrase conflicts with other portions of the Act seeming to allow credits in all exchanges or with the purpose of the Act, an interpretation is required. And deference is given to the IRS for interpretations.
3. Congressional intent was clearly to have credits available in all states.
Why is this important? Because if there is a drafting error or ambiguity, even a tie goes to the IRS interpretation. The IRS is given deference. And an ambiguity or drafting error is established when it is clear that a phrase contradicts Congressional intent, especially intent this clear. Remember, the Plaintiff presented no evidence of other congressional intent. Oops.

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