Did Obama's lawyers mess up the Affordable Care Act?

A new paper from Health Matrix: Journal of Law-Medicine suggests that a missing word in the Affordable Care Act, the 2000-page law which created Obamacare, may scupper a key provision of the plan.

The Act brings into existence health insurance exchanges, federally- and state-run institutions which centralise and regulate the process of buying health insurance for people with enough income to not be eligible for Medicare. It also lays out who can get federal subsidies to buy insurance from those exchanges, the idea being that those subsidies will gradually encourage people to migrate from America's current system of employer-provided insurance to a saner system of individuals buying their own healthcare, which will hopefully lead to, among other things, fewer people dying as a direct result of losing their job.

Unfortunately, the authors of the article alledge that a drafting error by the administration's lawyers has rendered that aim unachievable. In the passage laying out who can get that crucial federal subsidy, Article 1401 the law restricts eligibility to those who "enrolled … through an Exchange established by the State under 1311." And Article 1311 defines an exchange as a "governmental agency or nonprofit entity that is established by a state."

Crucially, the definition of an exchange, for the purposes of the federal subsidy, seems to exclude federal exchanges.

The authors argue that this is on purpose, citing the words of the head of the Senate finance committee that "the bill conditions the availability of tax credits on each state creating its own Exchange". The Obama administration obviously believes the latter, with the Washington Post's Sarah Kliff arguing that:

There’s another part of Section 1401 — Section 1401(f)(3), to be exact — that requires both federal and state exchanges to report information about any credits being administered. Why would federal exchanges need to report that information, the thinking goes, if they were not administering credits?

If the difference in phrasing is a genuine mistake - a so-called "Scrivener's error" - then it will lead to a mildly embarrassing court case where that point is clarified, and that's that. But if the administrations lawyers actually did miss a clause inserted by one of the co-authors which fundamentally changes the meaning of the law, this one could run and run.

*Obama facepalm*. Photograph: Getty Images

Alex Hern is a technology reporter for the Guardian. He was formerly staff writer at the New Statesman. You should follow Alex on Twitter.

Photo: Getty
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Donald Trump's inauguration signals the start of a new and more unstable era

A century in which the world's hegemonic power was a rational actor is about to give way to a more terrifying reality. 

For close to a century, the United States of America has been the world’s paramount superpower, one motivated by, for good and for bad, a rational and predictable series of motivations around its interests and a commitment to a rules-based global order, albeit one caveated by an awareness of the limits of enforcing that against other world powers.

We are now entering a period in which the world’s paramount superpower is neither led by a rational or predictable actor, has no commitment to a rules-based order, and to an extent it has any guiding principle, they are those set forward in Donald Trump’s inaugural: “we will follow two simple rules: hire American and buy American”, “from this day forth, it’s going to be America first, only America first”.

That means that the jousting between Trump and China will only intensify now that he is in office.  The possibility not only of a trade war, but of a hot war, between the two should not be ruled out.

We also have another signal – if it were needed – that he intends to turn a blind eye to the actions of autocrats around the world.

What does that mean for Brexit? It confirms that those who greeted the news that an US-UK trade deal is a “priority” for the incoming administration, including Theresa May, who described Britain as “front of the queue” for a deal with Trump’s America, should prepare themselves for disappointment.

For Europe in general, it confirms what should already been apparent: the nations of Europe are going to have be much, much more self-reliant in terms of their own security. That increases Britain’s leverage as far as the Brexit talks are concerned, in that Britain’s outsized defence spending will allow it acquire goodwill and trade favours in exchange for its role protecting the European Union’s Eastern border.

That might allow May a better deal out of Brexit than she might have got under Hillary Clinton. But there’s a reason why Trump has increased Britain’s heft as far as security and defence are concerned: it’s because his presidency ushers in an era in which we are all much, much less secure. 

Stephen Bush is special correspondent at the New Statesman. His daily briefing, Morning Call, provides a quick and essential guide to British politics.