"Four Words That Imperil Health Care Law Were All a Mistake, Writers Now Say."

A NYT article about the Obamacare case that's pending in the U.S. Supreme Court. A key word in that headline is "now." At this point — with so many states having decided not to set up their own exchanges — those who support Obamacare have a strong interest in saying that the discrepancy in the text is meaningless:

At the Finance Committee, which thrashed out its version of the bill in September and October 2009, senators initially assumed that all states would set up exchanges, so they added a section to the Internal Revenue Code to provide subsidies, in the form of tax credits, for insurance purchased through an exchange.

But senators and staff lawyers came to believe that some states — “five or 10 at the most” — would choose not to set up exchanges, said Christopher E. Condeluci, who was a staff lawyer for Republicans on the Finance Committee.

At that point, senators authorized a backup plan to allow the federal government to establish an exchange in any state that did not have its own, but they failed to include that language in the section of the tax code providing subsidies. “We failed to include a cross-reference to the federal exchange,” Mr. Condeluci said. “In my opinion, due to a drafting error, we overlooked it. It was an oversight. Congress, in my experience, always intended for the federal exchange to deliver subsidies.”

The words were written by professional drafters — skilled nonpartisan lawyers — from the office of the Senate legislative counsel, then James W. Fransen. It appears that the four words now being challenged were based on the initial premise and were carelessly left in place as the legislation evolved.

So... skilled, professional drafters... failing to check the cross-references. That's the story. As opposed to the idea that the loss of the subsidies was supposed to motivate the states to set up exchanges.

I think the main problem is that if there were a big incentive on offer, it needed to be clearly stated so the states would know what they were giving up if they failed it set up exchanges. But there's still the question whether the Court can remedy that unfairness. If it doesn't, Congress will need to step up.