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
Show Hide image

Britain is running out of allies as it squares up to Russia

For whatever reason, Donald Trump is going to be no friend of an anti-Russia foreign policy.

The row over Donald Trump and that dossier rumbles on.

Nothing puts legs on a story like a domestic angle, and that the retired spy who compiled the file is a one of our own has excited Britain’s headline writers. The man in question, Christopher Steele, has gone to ground having told his neighbour to look after his cats before vanishing.

Although the dossier contains known errors, Steele is regarded in the intelligence community as a serious operator not known for passing on unsubstantiated rumours, which is one reason why American intelligence is investigating the claims.

“Britain's role in Trump dossier” is the Telegraph’s splash, “The ‘credible’ ex-MI6 man behind Trump Russia report” is the Guardian’s angle, “British spy in hiding” is the i’s splash.

But it’s not only British headline writers who are exercised by Mr Steele; the Russian government is too. “MI6 officers are never ex,” the Russian Embassy tweeted, accusing the UK of “briefing both ways - against Russia and US President”. “Kremlin blames Britain for Trump sex storm” is the Mail’s splash.

Elsewhere, Crispin Blunt, the chair of the Foreign Affairs Select Committee, warns that relations between the United Kingdom and Russia are as “bad as they can get” in peacetime.

Though much of the coverage of the Trump dossier has focused on the eyecatching claims about whether or not the President-Elect was caught in a Russian honeytrap, the important thing, as I said yesterday, is that the man who is seven days from becoming President of the United States, whether through inclination or intimidation, is not going to be a reliable friend of the United Kingdom against Russia.

Though Emanuel Macron might just sneak into the second round of the French presidency, it still looks likely that the final choice for French voters will be an all-Russia affair, between Francois Fillon and Marine Le Pen.

For one reason or another, Britain’s stand against Russia looks likely to be very lonely indeed.

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