No insurance for you.
No insurance for you.

I’ve been mostly staying out of the commentary on the court cases involving subsidies in Affordable Care Act exchanges, because I’m not a lawyer and statutory interpretation, I’d say, is one thing that really is best left to lawyers.

However, questions about how laws are drafted, and how courts work, are a bit different, and so I’ll bring you two quotes. The first is from Matt Yglesias of, responding to an assertion that the ACA's hasty final passage was responsible for sloppyness in the law's drafting, and thus its vulnerability in court:

Other hypothesis: Since all the same lawyers and judges would have disliked it, legal troubles would have been identical.

Is that correct? Here’s a more elaborate answer, rendered via e-mail, from University of Chicago public health scholar Harold Pollack (I've added the links):

Any large national piece of health legislation necessarily includes semantic issues, complex issues of state-federal authority, re-writing the intricate boundaries of ERISA, complicated tax, finance, and regulatory issues. Although ACA was sloppier than it should have been due to lack of conference committee, any bill would also have drafting ambiguities or errors that require proper statutory interpretation. This is true of everything from single-payer to the Heritage Foundation's [hypothetical ideal conservative] bill. Each of these bills would include various open invitations for an activist judiciary to wreak havoc if it so chose. That's what happened here.

That’s absolutely true. There is no major federal reform bill, in any policy area, which doesn’t contain ambiguities and crucial passages written in vague or convoluted language. Indeed, for those in the legislative trenches attempting to strike deals, ambiguity is often a feature, not a bug. The point is to get the thing passed, and fight out the details later.

Conservatives may interject here: That’s a good reason not to pass large, complex policies. That’s a fair point, although the liberal rejoinder that it’s better to attack problems with imperfect vehicles than simply to give up on them is also a fair point.

Is Obamacare unique? It’s not unusual for opponents to attack a bill long after it has passed, and it’s common for every interested group to attempt to exploit a law's ambiguities or shoddy construction to get the best deal for itself. What’s highly unusual, however, is for those who oppose a law to exploit its weaknesses not to improve it (as they themselves see fit), but to sabotage it -- even if that results in policy outcomes that they consider worse.

That’s almost certainly the case here. I don’t think Republicans believe that damaging Obamacare so that it provides middle-class subsidies in some (mostly blue) states while providing none at all in other (mostly red) states is actually a better policy outcome than the status quo. They just hope that it will weaken the law sufficiently to lead somehow to its collapse and eventual repeal. That's clearly the motivation behind House Speaker John Boehner’s proposed lawsuit against President Barack Obama for deferring the law's employer mandate. And we’ve seen the same agenda in other instances as well, including the advertising campaign, sponsored by conservative groups, to convince young people that they are better off without health insurance. It's hard to believe that Republicans think that adding to the numbers of uninsured Americans is actually a desirable policy goal.

Yet Republicans are willing to encourage such negative outcomes if that increases the chances of scuttling the law. That's the real story here.

To contact the author on this story:
Jonathan Bernstein at

To contact the editor on this story:
Francis Wilkinson at