Friday the Supreme Court is scheduled to consider the petition for certiorari in King v. Burwell. Fridays Post also features an op-ed defending the IRS rule authorizing tax credits for the purchase of health insurance in exchanges established by the federal government at issue in King and several other pending cases. The op-ed is authored by Senators Tom Harkin (D-IA) and Ron Wyden, and Representatives Sander M. Levin (D-Mich.), George Miller (D-Calif.) and Henry A. Waxman (D-Calif.). As the accompanying byline notes, all five were heavily involved in the efforts to enacted health care reform and the eventual passage of the Patient Protection and Affordable Care Act. So if anyone knows how the law was passed, it should be these gentlemen. That makes the substance of their essay all the more odd.
The point of their op-ed is to suggest that it is fanciful to suggest (as I and others have argued) that the PPACA only authorizes tax credits in exchanges established by the states, even though that is what the law repeatedly says. I wont rehearse all of the arguments here.
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In this post, I want to focus on this curious passage from the Harkin, et al., op-ed:
None of us contemplated that the bill as enacted could be misconstrued to limit financial help only to people in states opting to directly run health insurance marketplaces. In fact, as chairs of the three House committees that collectively authored the health-care reform legislation (Ways and Means, Energy and Commerce, and Education and the Workforce), three of us issued a joint fact sheet in March 2010 reflecting our intention that financial help would be available to consumers in the state marketplaces, whether the state were to run it directly or via the federal government. (Emphasis added.)
I literally had to read this paragraph three times to make sure I was reading it correctly. The health care reform legislation that is, the PPACA - was authored in the Senate, not the House. There was not even a House-Senate conference to reconcile the competing bills because the election of Senator Scott Brown in Massachusetts deprived Senate Democrats of the 60th vote necessary to invoke cloture. This meant that the only health reform that could be enacted was that Senate bill. This bill was subsequently amended through the reconciliation process, but the heart of the bill and the provisions relevant to the whether tax credits are available in federal exchanges are from the Senate bill.
Now it is true that there was health-care reform legislation passed by the House, but it was not the health care reform legislation at issue. The House legislation never became law and was not, in any meaningful sense, incorporated in the PPACA. Indeed, this is why some House members had serious reservations about the Senate bill (including its exchange provisions) and why leading health care reform advocates had to argue vociferously that the Senate bill, for all its flaws, was still better than no bill at all. The health care reform proposals developed in the House may have been preferred by most reform advocates, but thats not what became law. What House leaders intended to do with legislation that was never enacted is irrelevant to the meaning of the PPACA because they didnt have the votes to enact their intentions into law.