Why the Supreme Court should scrap ObamaCare's federal exchange subsidies

It's the least intrusive option that keeps within the limits of the court's authority

Yesterday's oral arguments for King vs. Burwell, the latest legal challenge to ObamaCare before the Supreme Court, confirmed one thing: The law, as written, is a complete mess. The justices might be tempted to take it upon themselves to straighten it out to avoid disrupting coverage for millions of Americans, but that's really not their job. The Obama administration will no doubt disagree, but the most appropriate — and the least political — course for the justices would be to overrule the contested portion of the law and let Congress rewrite it.

At issue in the lawsuit is the legality of the billions of dollars in subsidies that the Internal Revenue Service is doling out through federal exchanges in about 35 states that refused to set up their own exchanges. The challengers claim that the law explicitly limits these subsidies to state, not federal, exchanges. As evidence, they point to Section 1311 of the Affordable Care Act, which states that subsidies should flow through exchanges "established by the State" — not "for the State" or "within the State" or myriad similar constructions. The logic behind this, they note, was to give states an incentive to establish their own exchanges, saving Uncle Sam the herculean task of doing so in 50 states. Also, the administration was eager to avoid the impression that it was engineering a federal takeover of the health care system, something that might well have scared away enough legislators to derail the law, given that it squeaked through narrowly on a strict party line.

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