- Associated Press - Wednesday, March 4, 2015

Excerpts from arguments before the Supreme Court on Wednesday about whether the nation’s health care law makes subsidies for buying insurance available to residents of all states, or only to people in states that establish their own insurance exchanges:

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On how to interpret the meaning of a statute that is confusingly written:

Justice Elena Kagan: But we are interpreting a statute generally to make it make sense as a whole, right? We look at the whole text. We don’t look at four words. We look at the whole text, the particular context, the more general context, try to make everything harmonious with everything else.

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On whether the states understood the law to mean that their residents couldn’t get subsidies through a federal exchange:

Justice Sonia Sotomayor: Do you really believe that states fully understood that they were not going to get, their citizens were not going to get, subsidies if they let the federal government (set up the exchange)? What senator said that during the hearings?

Michael Carvin (lawyer arguing subsidies aren’t allowed in federal exchanges): The same amount of senators who said that subsidies were available on HHS (U.S. Department of Health and Human Services) exchanges, which is none. They didn’t deal with it in the legislative history just as they didn’t deal with Medicaid because the statute was quite clear.

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Carvin: The solicitor general is coming here to tell you that a rational, English-speaking person intending to convey subsidies available on HHS exchanges used the phrase “exchanges established by the state.”

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On the idea that Congress would have said so clearly in the law if it intended to impose a tough choice on the states:

Kagan: There’s really nothing clear about this. I mean, this took a year and a half for anybody to even notice this language.

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On considering Congress’s intentions when interpreting the wording of the law:

Solicitor General Donald Verrilli Jr. (representing the Obama administration): Their reading forces HHS to establish rump exchanges that are doomed to fail. It makes a mockery of the statute’s express - statute’s express textual promise of state flexibility. It precipitates the insurance market death spirals that the statutory findings specifically say the statute was designed to avoid, and of course it revokes the promise of affordable care for millions of Americans. That cannot be the statute that Congress intended.

Justice Antonin Scalia: It may not be the statute they intended. The question is whether it’s the statute that they wrote.

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On the effect of eliminating subsidies for people enrolled in the federal exchange:

Justice Samuel Alito: It’s not too late for a state to establish an exchange if we were to adopt petitioners’ interpretation of the statute. So going forward, there would be no harm.

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On the idea that if the court decides the subsidies are illegal, Congress will act to fix the wording of the law:

Scalia: What about Congress? You really think Congress is just going to sit there while - while all of these disastrous consequences ensue?

Verrilli: Well, this Congress, Your Honor? I … (laughter) … I mean, of course, theoretically - of course, theoretically they could.

Scalia: I don’t care what Congress you’re talking about. If the consequences are as disastrous as you say, so many million people without - without insurance and whatnot, yes, I think this Congress would act.

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