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 Images
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Caroline Lucas: The Prime Minister's narrow focus risks our security

Military force may sometimes be necessary. But resorting to bombs and bullets comes at a high price to those caught up in conflicts abroad and, all too often, to the future security of people across the world.

The protection of national security is the first duty of any government. In the dangerous world in which we live -where threats range from terrorist attacks, to public health emergencies and extreme weather events – we all want to feel safe in the knowledge that the government is acting in our best interests.

David Cameron’s speech yesterday marked a change in tone in this government’s defence policies. The MOD is emerging from the imposition of austerity long before other departments as ministers plan to spend £178bn on buying and maintaining military hardware over the next decade.

There is no easy solution to the threats facing Britain, or the conflicts raging across the world, but the tone of Cameron’s announcement – and his commitment to hiking up spending on defence hardware- suggests that his government is focussing far more on the military solutions to these serious challenges, rather than preventing them occurring in the first place.

Perhaps Cameron could have started his review by examining how Britain’s arms trade plays a role in conflict across the world. British military industries annually produce over $45 billion (about £30 billion) worth of arms. We sell weapons and other restricted technologies to repressive regimes across the world, from Saudi Arabia and the UAE to Kazakhstan and China. Furthermore Britain has sent 200 personnel in Loan Service teams in seven countries: Brunei, Jordan, Kuwait, Oman, Qatar, Saudi Arabia and United Arab Emirates – helping to train and educate the armed forces of those countries.  Any true review of our security should certainly have looked closely at the effects of our arms industry- and the assistance we’re giving to powers in some of the most unstable regions on earth.

At the heart of the defence review is a commitment to what Cameron calls Britain’s “ultimate insurance policy as a nation’ – the so-called “independent nuclear deterrent”. The fact remains that our nuclear arsenal is neither “independent” – it relies on technology and leased missiles from the USA, nor is it a deterrent. As a group of senior military officers, including General Lord Ramsbotham and the former head of the armed forces Field Marshal Lord Bramall wrote in a letter to the Times “Nuclear weapons have shown themselves to be completely useless as a deterrent to the threats and scale of violence we currently face or are likely to face, particularly international terrorism.”

The cold truth is that France’s nuclear weapons didn’t protect Parisians against Isis terrorists, and our own nuclear weapons cannot be claimed to make us safer than Germany, Spain or Italy. The unending commitment to these weapons, despite the spiralling costs involved and the flimsy evidence in their favour, seems to be closer linked to international grandstanding than it does our national security. Likewise the Government’s further investment in drones, should be looked at closely, with former defence chiefs in the USA having spoken against these deadly pilotless aircraft and describing their use as a “failed strategy” which has further radicalised populations in the Middle East. A serious review of our defence strategy should have looked at the possibility of alternatives to nuclear proliferation and closely investigated the effectiveness of drones.

Similarly the conclusions of the review seem lacking when it came to considering diplomacy as a solution to international conflict. The Foreign Office, a tiny department in terms of cost, is squeezed between Defence and the (thankfully protected) Department for International Development. The FCO has already seen its budget squeezed since 2010, and is set for more cuts in tomorrow’s spending review. Officials in the department are warning that further cuts could imperil the UK’s diplomatic capacity. It seems somewhat perverse that that Government is ramping up spending on our military – while cutting back on the department which aims to protect national security by stopping disputes descending into war. 

In the government’s SDSR document they categories overseas and domestic threats into three tiers. It’s striking that alongside “terrorism” and “international military conflict” in Tier One is the increasing risk of “major natural hazards”, with severe flooding given as an example. To counteract this threat the government has pledged to increase climate finance to developing countries by at least 50 per cent, rising to £5.8 billion over five years. The recognition of the need for that investment is positive but– like the continual stream of ministerial warm words on climate change – their bold statements are being undermined by their action at home.

This government has cut support for solar and wind, pushed ahead with fracking and pledged to spend vast sums on an outdated and outrageously expensive nuclear power station owned in part by the Chinese state. A real grasp of national security must mean taking the action needed on the looming threat of energy insecurity and climate change, as well as the menace of terrorism on our streets.

Military force may sometimes be necessary. But resorting to bombs and bullets comes at a high price to those caught up in conflicts abroad and, all too often, to the future security of people across the world. It’s crucial we do not allow the barbarous acts carried out on the streets of Paris, in the skies above Egypt, the beaches of Tunisia or the hotels of Mali to cloud our judgement about what makes us safer and more secure in the long term.  And we must ensure that any discussion of defence priorities is broadened to pay far more attention to the causes of war, conflict and insecurity. Security must always be our first priority, but using military action to achieve that safety must, ultimately, always be a last resort.  

Caroline Lucas is the MP for Brighton Pavilion.