The New York Times carries a river-full of water for the Democrats' argument that the words of the Affordable Care Act don't mean what they say. The NYT invokes the phrase "drafting error" four times and the words "intend" or "intent" five times in the story, as if these magic talismans can protect the sloppy law from itself. Jonathan Gruber is not mentioned even once!
The story opens with a juvenile non sequitur:
They are only four words in a 900-page law: "established by the state."
It's crazy how just a few words can change the meaning of a whole document! You'd think that a journalist who works with words would grok the power of words, rather than be astonished.
But it is in the ambiguity of those four words in the Affordable Care Act that opponents found a path to challenge the law, all the way to the Supreme Court.
How those words became the most contentious part of President Obama's signature domestic accomplishment has been a mystery. Who wrote them, and why? Were they really intended, as the plaintiffs in King v. Burwell claim, to make the tax subsidies in the law available only in states that established their own health insurance marketplaces, and not in the three dozen states with federal exchanges?
The "ambiguity" only exists insofar as the reader wills it into existence by invoking "drafting errors" and ex post facto "intent".
The answer, from interviews with more than two dozen Democrats and Republicans involved in writing the law, is that the words were a product of shifting politics and a sloppy merging of different versions. Some described the words as "inadvertent," "inartful" or "a drafting error." But none supported the contention of the plaintiffs, who are from Virginia.
If every single person you talk to falls on one side of "the most contentious" issue at hand, perhaps there's some selection bias at work? The only elected Republican quoted is former Senator Olympia Snowe, who was always extremely liberal but voted against Obamacare anyway.
Also, "who are from Virginia" is apropos absolutely nothing.
The Senate bill was on the floor for 25 consecutive days before it was approved on Christmas Eve 2009 by a party-line vote of 60 to 39. Senators always assumed that their bill would be polished and refined in negotiations with the House. But the expected conference between the two chambers never occurred. Democrats switched their plans after Scott Brown, a Republican, won a special election in January 2010 to fill the seat long held by Senator Edward M. Kennedy, Democrat of Massachusetts, who had died the previous year.
Having lost a filibuster-proof majority, Democrats believed they could not afford to make significant changes in the Senate bill; it was then approved by the House and sent to the president, with an agreement that lingering questions could be answered separately. Some were, though these four words were unaddressed.
Elections have consequences?
Anyway, it's completely nonsensical to enforce what someone claims ex post facto the law was "intended" to say. That's rule by men, not rule by law. The written word is the shared understanding that Congress voted on and the President signed. If the written words don't reflect the intent, then the solution is to pass a new law with the correct intent. Problem solved.
We humans use writing to coordinate all kinds of shared activities: contracts, laws, regulations, procedures, religious beliefs, etc. The point of writing things down is to make sure that there's a common understanding that everyone can rely on. If you can't rely on what's written down to mean what it says, then what's the point?