The blockbuster case of this Term (depending on the timing of the next cert. petition on same-sex marriage) is the case granted today that could cripple the Affordable Care Act. I’ve always thought that the Supreme Court would take this (nice try–DC Circuit en banc) and that there is a good chance that the Administration would lose there.
What about the question of who should win? The most plausible explanation of the contested language is that Congress did not intend to limit the subsidies to state exchanges. Why does the statute say that then? Because Scott Brown was elected in a special election to fill Ted Kennedy’s seat. This deprived Democrats of their filibuster-proof majority in the Senate. Thus, the final bill was passed in the Senate through the reconciliation process (which only requires a simple majority). There was no conference committee or the usual procedures to fix errors in the bill.
What should a court do about this? The language about state exchanges is not ambiguous. The problem is that it is inconsistent with the rest of the statute, the intent of Congress, and could lead to an absurd result. Supporters of the Act are trying to make that an ambiguity argument because that gets the IRS interpretation Chevron deference. I am skeptical about this argument. And normally if the text is unambiguous then you do not look at the legislative intent or anything other than the possibility of an “absurd result.” So this may end up being the point on which King turns.