Partisan hack and Washington Post writer Greg Sargent has allegedly found a silver bullet that proves that the Halbig decision is erroneous and that the Halbig plaintiffs don’t have a leg to stand on. The gist of Sargent’s point is that an earlier version of the Obamacare bill had language that explicitly provided for subsidies for beneficiaries on Federal exchanges, even though the final version of the bill did not include such language:
The first Senate version of the health law to be passed in 2009 — by the Health, Education, Labor and Pensions Committee — explicitly stated that subsides would go to people on the federally-established exchange. A committee memo describing the bill circulated at the time spelled this out with total clarity.
The disputed language ended up in the final bill because the two versions — both of which intended subsidies in all 50 states, albeit by varying structures — were merged.
Unfortunately for Greg Sargent, anyone who is either a lawyer or a reasonable person will tell you that his evidence proves the exact opposite of what he contends. Since Sargent is neither a lawyer nor a reasonable person, he concludes that this proves that Congressional Intent (insofar as it matters) was to provide subsidies for those on federal exchanges; everyone else understands that this proves the exact opposite.
This is not really a close call or a matter of reasonable dispute. Even for people who take legislative history as a thing that ought to be given great weight, the fact that Congress included a clause in an earlier version of the bill but then changed or removed it in the final version is considered to be conclusive evidence that Congress specifically desired the change in question, not that they intended the earlier version. Let’s say hypothetically that you had a bill that said when it came out of committee, “Congress hereby appropriates $10 million for the funding of studies the mating habits of pink salmon and $5 million for the funding of studies of the mating of silver salmon,” but the final version of the bill merely said “$1o million for the funding of studies of the mating habits of pink salmon,” courts (like reasonable people) come to the inescapable conclusion that the clause about the silver salmon was removed per the deliberate intent of Congress otherwise it would have remained in the bill.
Likewise if a bill comes out of committee that says “The Federal Government and the Several States shall have concurrent jurisdiction over the enforcement of this mandate” but the final bill that gets passed says “The Federal Government shall have jurisdiction over the enforcement of this mandate,” that is considered conclusive, case-ending evidence of Congressional intent to remove State jurisdiction over the enforcement of the mandate in question.
Don’t take my word for it. My colleague Dan McLaughlin has compiled a list of Supreme Court precedents repeatedly making this exact point – see here, here, and here for just a few examples.
Make no mistake; Greg Sargent has made a powerful and compelling point about the Halbig decision. The problem for Sargent is that his point is much, much more likely to be cited by the Halbig Plaintiffs on appeal than by the defendants.