Replies

Judge Harry Edwards:
explained that he had gone through the legislative history
and hadn’t found evidence that Congress intended for subsidies
to be limited to states that created their own exchanges.
“Limiting the subsidies as an incentive seems preposterous.”

Michael Carvin:
Ben Nelson, the former senator from Nebraska,
was withholding support for Obamacare,
because he wanted exchanges to be state-based.
The Senate voted to make exchanges state-based,
with the powerful inducement of generous subsidies.

Judge Raymond Randolph:
“the phrase “established by the state” appears no less
than seven times in the relevant section.
It’s not an isolated reference,”
“Congress assumed more states would set up their own exchanges,
as evidenced by the relatively small amount of money allocated
to the federal government to set up exchanges.”

Judge Thomas Griffith:
pointed out that the key part of the phrase “established by the state”
seemed to be who was establishing the exchange.
“It wasn’t established by a state” if HHS set it up.
He also asked whether, if Congress didn’t legislate something clearly,
it was really the court’s job to fix the statute.