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.

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Must I unremember the day I wept over the long, slow suicide of a 27-year-old man?

At that time we did talk about the occupation of Ireland. Now we have to pretend we didn’t and it’s all the jolly UK and thank you, England for the peace process.

The misremembering of history interrupts these tales of my own squalid past. Very often I find myself wishing my memories were wrong, or that I’d forgotten more than I have. This would certainly be the case were I to be a politician, albeit a small-time one in big-time government. In the era of renunciations and sincere apologies, I would have to say sorry most of the time.

But I can’t. I can’t get past that clear day in May 1981, when the tangy cold spring air of a New York day got right inside me. Ambling home from another long, messy night in the Village, I was near 52nd when I saw people carrying a coffin.

“It’s not him, of course. It’s a fake coffin,” said a woman who saw the shock on my face. Maybe I was already crying. I knew and didn’t know but asked anyway.

“Yes. Bobby.”

Bobby Sands had died. Crowds were gathering with banners about Smashing Long Kesh and Smashing Thatcher.

The shock of it has never left me and God knows “martyrs” come two a penny now. Yet the idea that someone can starve themselves slowly to death for an idea is shocking. The idea that someone can let them do it, either “for” a United Ireland or “for” a United Kingdom, remains profoundly disturbing to me.

I need no lectures about what vile and murderous bastards the IRA were, or the numbers of innocents they killed. Nor about the smeary sentimentality of martyrdom itself. All I can say is that I had little idea of what “we” did in Ireland as long as I lived in England. A boy at school had run off to join the IRA. My mum said, “Well, he’s always been tapped, that one.”

We were kept ignorant. For some stupid reason, I did not think that Thatcher would let the hunger strikers die.

Their demands, remember, were the right not to wear prison uniform or to do prison work, rights to free association and education within the prison, one visit, one parcel, one letter a week. They wanted to be treated as political prisoners. Thatcher said Sands had no mandate. He was actually an MP, with more votes than she ever won in Finchley.

In New York that day, when we got to Third Avenue, there was anger and then solemnity. There were mumblings about what a death like that entailed . . . Mandela then instigated a hunger strike on Robben Island. There were protests in Milan and Ghent. French towns would name streets after Sands.

At that time, though, yes, we did talk about the occupation of Ireland. Now we have to pretend we didn’t and it’s all the jolly UK and thank you, England for the peace process.

So, must I unremember that day when I sat down on the pavement and wept over the long, slow suicide of a 27-year-old man? Let me know how to uncry all those tears shed for that terrible, terrible waste.

Suzanne Moore is a writer for the Guardian and the New Statesman. She writes the weekly “Telling Tales” column in the NS.

This article first appeared in the 01 October 2015 issue of the New Statesman, The Tory tide