Rut Row: Dems Cut ACA Subsidies for Federal Exchanges from Earlier Versions that Passed at the Committee Level in the Senate

Here is the bottom line:

Legislative language to to allow subsidies to be paid to residents of states with a federally run exchange passed in earlier versions of the ACA, in the Senate, at the committee level.

Once the White House and Senate Committees merged the various versions into one bill to go to the Senate floor, they took those provisions out.

As Tom Miller writes, quoting an unnamed Washington D.C. attorney:

“The issue in King v. Burwell initially is all about whether the Court can read into a law any statutory language that was earlier considered by the Congress but was not adopted in the subsequently enacted final version of that law. The Supreme Court has said in the past that there are few principles of statutory construction that are more compelling than the proposition that Congress does not intend to enact as statutory language provisions that it has earlier discarded in favor of other language. See Doe v. Chao, 540 U.S. 614, 622 (2004).

The question is not what Congress would have wanted but what Congress actually enacted. The Court’s role is to interpret the statutory language of the law as it is enacted by the Congress and to presume that the legislature has said what it means and means what it says, and to not alter the text to satisfy a policy preference. For the ACA, if the language of S. 1679 was intended to be included, then the proper remedy is to seek amendment to the statute from the Legislative Branch. Congress had the language and knew what to say but did not say it.”

Grace Marie Turner also has a good piece on this judicially significant legislative history.

Based on court precedent and legislative history, combined with Chief Justice Robert’s dislike of the Chevron rule, the odds that there will be a King victory have gone up.

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