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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Stephen Hawking's enthusiasm for colonising space makes him almost as bad as Trump

The physicist's inistence on mankind's expansion risks making him a handmaiden of inequality.

“Spreading out may be the only thing that saves us from ourselves,” Stephen Hawking has warned. And he’s not just talking about surviving the UK's recent run of record breaking heat. If humanity doesn’t start sending people to Mars soon, then in a few hundred years he says we can all expect to be kaput; there just isn’t enough space for us all.

The theoretical physicist gave his address to the glittering Starmus Festival of science and arts in Norway. According to the BBC, he argued that climate change and the depletion of natural resources help make space travel essential. With this in mind, he would like to see a mission to Mars by 2025 and a new lunar base within 30 years.

He even took a swipe at Donald Trump: “I am not denying the importance of fighting climate change and global warming, unlike Donald Trump, who may just have taken the most serious, and wrong, decision on climate change this world has seen.”

Yet there are striking similarities between Hawking's statement and the President's bombast. For one thing there was the context in which it was made - an address to a festival dripping with conspicuous consumption, where 18 carat gold OMEGA watches were dished out as prizes.

More importantly there's the inescapable reality that space colonisation is an inherently elitist affair: under Trump you may be able to pay your way out of earthly catastrophe, while for Elon Musk, brawn could be a deciding advantage, given he wants his early settlers on Mars to be able to dredge up buried ice.

Whichever way you divide it up, it is unlikely that everyone will be able to RightMove their way to a less crowded galaxy. Hell, most people can’t even make it to Starmus itself (€800  for a full price ticket), where the line-up of speakers is overwhelmingly white and male.

So while this obsession with space travel has a certain nobility, it also risks elevating earthly inequalities to an interplanetary scale.

And although Hawking is right to call out Trump on climate change, the concern that space travel diverts money from saving earth's ecosystems still stands. 

In a context where the American government is upping NASA’s budget for manned space flights at the same time as it cuts funds for critical work observing the changes on earth, it is imperative that the wider science community stands up against this worrying trend.

Hawking's enthusiasm for colonising the solar system risks playing into the hands of the those who share the President destructive views on the climate, at the expense of the planet underneath us.

India Bourke is an environment writer and editorial assistant at the New Statesman.

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