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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On the "one-state" solution to Israel and Palestine, what did Donald Trump mean?

The US President seemed to dismantle two decades of foreign policy in his press conference with Benjamin Netanyahu. 

If the 45th President of the United States wasn’t causing enough chaos at home, he has waded into the world’s most intricate conflict – Israel/Palestine. 

Speaking alongside Israeli Prime Minister Benjamin Netanyahu, Trump made an apparently off-the-cuff comment that has reverberated around the world. 

Asked what he thought about the future of the troubled region, he said: “I’m looking at two-state and one-state and I like the one that both parties like.”

To the uninformed observer, this comment might seem fairly tame by Trump standards. But it has the potential to dismantle the entire US policy on the Israeli-Palestinian peace process. Trump said he could "live with" either a two-state or one-state solution. 

The "two-state solution" has become the foundation of the Israel-Palestine peace process, and is a concept that has existed for decades. At its simplest, it's the idea that an independent state of Palestine can co-exist next to an independent Israel. The goal is supported by the United Nations, by the European Union, by the Arab League, and by, until now, the United States. 

Although the two-state solution is controversial in Israel, many feel the alternative is worse. The idea of a single state would fuel the imagination of those on the religious right, who wish to expand into Palestinian territory, while presenting liberal Zionists with a tricky demographic maths problem - Arabs are already set to outnumber Jews in Israel and the occupied territories by 2020. Palestinians are divided on the benefits of a two-state solution. 

I asked Yossi Mekelberg, Professor of International Relations at Regent's University and an associate fellow at Chatham House, to explain exactly what went down at the Trump-Netanyahu press conference:

Did Donald Trump actually mean to say what he said?

“Generally with President Trump we are into an era where you are not so sure whether it is something that happens off the hoof, that sounds reasonable to him while he’s speaking, or whether maybe he’s cleverer than all of us put together and he's just pretending to be flippant. It is so dramatically opposite from the very professorial Barack Obama, where the words were weighted and the language was rich, and he would always use the right word.” 

So has Trump just ditched a two-state solution?

“All of a sudden the American policy towards the Israel-Palestine conflict, a two-state solution, isn’t the only game in town.”

Netanyahu famously didn’t get on with Obama. Is Trump good news for him?

“He was quite smug during the press conference. But while Netanyahu wanted a Republican President, he didn’t want this Republican. Trump isn’t instinctively an Israel supporter – he does what is good for Trump. And he’s volatile. Netanyahu has enough volatility in his own cabinet.”

What about Trump’s request that Netanyahu “pull back on settlements a little bit”?

“Netanyahu doesn’t mind. He’s got mounting pressure in his government to keep building. He will welcome this because it shows even Trump won’t give them a blank cheque to build.”

Back to the one-state solution. Who’s celebrating?

“Interestingly, there was a survey just published, the Palestinian-Israel Pulse, which found a majority of Israelis and a large minority of Palestinians support a two-state solution. By contrast, if you look at a one-state solution, only 36 per cent of Palestinians and 19 per cent of Israel Jews support it.”

 

 

Julia Rampen is the editor of The Staggers, The New Statesman's online rolling politics blog. She was previously deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines.