From an editorial Wednesday in the Washington Post:
When the Supreme Court examines the Affordable Care Act again Wednesday, it will have several logical, principled paths to avoid tearing apart a law that has slowly but surely found its footing. It should take at least one of them.
The dispute before the court concerns a line of legislative text that offers federal subsidies to customers shopping for health-care insurance on a marketplace, or exchange, “established by the State.” Most states did not create their own exchanges, instead deferring to the federal government, which the law empowered to create exchanges in their stead. Without subsidies, the federal exchanges would struggle to attract enough customers to maintain viable markets. In other words, the plaintiffs insist that the architects of the law designed it in a way that begs its failure.
On the merits, those suing offer what they claim is one plausible rationale for the law’s potentially self-defeating language: That Congress actually meant to withhold subsidies from non-cooperative states in order to persuade them to create their own exchanges. This argument strains the imagination, since it runs counter to the law’s fundamental purpose: establishing a near-universal health-coverage program through private insurance marketplaces. There is scant evidence for this theory on the record, and the legislators who drafted the bill say it is false.
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Then the question becomes: Did Congress stumble into undermining the policy, approving a bill with a highly regrettable textual error? Even if the justices accept that possibility, the government should still win. Courts generally and properly defer to executive agencies in the interpretation of ambiguous legal texts.
The government’s interpretation must stand.