I haven’t commented much on the issues at play in the latest Obamacare case to reach the Supreme Court, mostly because there are so many lawyer-bloggers and health care pundits on the internet offering more informed takes than mine. But now duty calls, so here is my pundit’s view of things:
1) Having gone back and forth over the evidence presented, I’m not convinced by the plaintiffs’ argument that the people responsible for drafting for Obamacare consciously intended to limit subsidies in order to induce states to set up their own exchanges. The famous comments suggesting that they did, from Jonathan Gruber and others, make me suspect that this possibility floated somewhere in the Obamacare hive mind, and the much-discussed path that different versions of the bill took through the Senate allows room for the possibility that somebody involved with the process had that idea in mind, and that this person’s sense of how the law ought to work played some role in why the language that we have ended up in there. But the extent that we’re talking about the intent of the drafters as a collaborative group, my sense is that they’re telling the truth about having no such plan in mind, and thus that the text as we have it is the result of accident and oversight and blundering rather than design.