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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French voters face a choice: Thatcherism or fascism

Today's Morning Call. 

Francois Fillon has been handed the task of saving France from a Marine Le Pen presidency and, by extension, the European Union from collapse, after a landslide win over Alain Juppé in the second round of the centre-right Republican party primary, taking 67 per cent of the vote to Juppé's 33 per cent. 

What are his chances? With the left exhausted, divided and unpopular, it's highly likely that it will be Fillon who makes it into the second round of the contest (under the French system, unless one candidate secures more than half in the first round, the top two go to a run off). 

Le Pen is regarded as close-to-certain of winning the first round and is seen as highly likely to be defeated in the second. That the centre-right candidate looks - at least based on the polls - to be the most likely to make it into the top two alongside her puts Fillon in poll position if the polls are right.

As I explained in my profile of him, his path to victory relies on the French Left being willing to hold its nose and vote for Thatcherism - or, at least, as close as France gets to Thatcherism - in order to defeat fascism. It may be that the distinctly Anglo-Saxon whiff of his politics - "Thatcherite Victor vows sharp shock for France" is the Times splash - exerts too strong a smell for the left to ignore.

The triumph of Brexit in the United Kingdom and Donald Trump in the United States have the left and the centre nervous. The far right is sharing best practice and campaign technique across borders, boosting its chances. 

Of all forms of mistake, prophecy is the most avoidable, so I won't make one. However, there are a few factors that may lie in the way of Le Pen going the way of Trump and Brexit. Hostility towards the European project and white  racial reaction are both deeply woven into the culture and politics of the United Kingdom and the United States respectively. The similarities between Vote Leave and Trump are overstated, but both were fighting on home turf with the wind very much at their backs. 

While there's a wider discussion to be had about the French state's aggressive policy of secularism and diversity blindness and its culpability for the rise of Le Pen, as far as the coming contest is concerned, the unity of the centre against the extremes is just as much a part of French political culture as Euroscepticism is here in Britain. So it would be a far bigger scale of upheaval if Le Pen were to win, though it is still possible.

There is one other factor that Fillon may be able to rely on. He, like Le Pen, is very much a supporter of granting Vladimir Putin more breathing space and attempting to reset Russia's relationship with the West. He may face considerably less disruption from that quarter than the Democrats did in the United States. Still, his campaign would be wise to ensure they have two-step verification enabled.

A WING AND A PRAYER

Eleanor Mills bagged the first interview with the new PM in the Sunday Times, and it's widely reported in today's papers. Among the headlines: the challenge of navigating  Brexit keeps Theresa May "awake at night", but her Anglican faith helps her through. She also lifted the lid on Philip May's value round the home. Apparently he's great at accessorising. 

THE NEVERENDING STORY

John Kerr, Britain's most experienced European diplomat and crossbench peer, has said there is a "less than 50 per cent" chance that Britain will negotiate a new relationship with the EU in two years and that a transitional deal will have to be struck first, resulting in a "decade of uncertainty". The Guardian's Patrick Wintour has the story

TROUBLED WATERS OVER OIL

A cross-party coalition of MPs, including Caroline Lucas and David Lammy, are at war with their own pension fund: which is refusing to disclose if its investments include fossil fuels. Madison Marriage has the story in the FT

TRUMPED UP CHARGES?

The Ethics Council to George W Bush and Barack Obama say the Electoral College should refuse to make Donald Trump President, unless he sells his foreign businesses and puts his American ones in a genuine blind trust. Trump has said he plans for his children to run his businesses while he is in the Oval Office and has been involved in a series of stories of him discussing his overseas businesses with foreign politicians. The New York Times has detailed the extentof Trump's overseas interests. 

TODAY'S MORNING CALL...

...is brought to you by the City of London. Their policy and resources chairman Mark Boleat writes on Brexit and the City here.

CASTROFF

Fidel Castro died this weekend. If you're looking for a book on the region and its politics, I enjoyed Alex von Tunzelmann's Red Heat, which you can buy on Amazon or Hive.

BALLS OUT

Ed Balls was eliminated from Strictly Come Dancing last night, after finishing in the bottom two and being eliminated by the judges' vote.  Judge Rinder, the daytime TV star, progressed to the next round at his expense. 

AND NOW FOR SOMETHING COMPLETELY DIFFERENT

Helen reviews Glenda Jackson's King Lear.

MUST READS

Forget Castro's politics. All that matters is he was a dictator, says Zoe Williams

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It’s time to end the lies on immigration, says Anna Soubry

Get Morning Call direct to your inbox Monday through Friday - subscribe here. 

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