A left-wing blogger named David Ziff wrote some intelligent commentary on Halbig, and the poor quality of the left’s response. However, he also wrote the following:
It’s not like we don’t have good textual and contextual arguments on the left! For one, read the Court of Appeals decision in King v. Burwell starting on page 15.
I made the following comment. Here’s I’ll do it with formatting
If you’re resting your hopes on the King Court, you’re going to be very disappointed. First, let’s consider this from the 4th Circuit Opinion:
Section 1321(c) provides that if a state fails to establish an Exchange by January 1, 2014, the Secretary “shall . . . establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.” (emphasis added). The defendants’ position is that the term “such Exchange” refers to a state Exchange that is set up and operated by HHS. In other words, the statute mandates the existence of state Exchanges, but directs HHS to establish such Exchanges when the states fail to do so themselves. In the absence of state action, the federal government is required to step in and create, by definition, “an American Health Benefit Exchange established under [§] 1311” on behalf of the state.
This is really pathetic. The text says “enrolled in through an Exchange established by the State under [§]1311 of the [Act].” “By” Not “on behalf of”.
Second, there’s this, from Halbig (pages 18 – 20):
The dissent [and the 4th Circuit in King] attempts to supply this missing equivalency by pointing to section 1311(d)(1), which provides: “An Exchange shall be a governmental agency or nonprofit entity that is established by a State.” 42 U.S.C. § 18031(d)(1). According to the dissent, (d)(1) means that an Exchange established under section 1311 is, by definition, established by a state. Therefore, the dissent argues, because federal Exchanges are established under section 1311, they too, by definition, are established by a state.
The premise that (d)(1) is definitional, however, does not survive examination of (d)(1)’s context and the ACA’s structure. The other provisions of section 1311(d) are operational requirements, setting forth what Exchanges must (or, in some cases, may) do. See generally 42 U.S.C. § 18031(d)(2)-(7) (listing “[r]equirements”). Read in keeping with that theme, (d)(1) would simply require that an Exchange operate as either a governmental agency or nonprofit entity. But the dissent would have us construe (d)(1) differently. In its view, (d)(1) plays a definitional role unique among section 1311(d)’s otherwise operational provisions, creating a legal fiction that any Exchange is, by definition, established by a state, even when, as a matter of fact, it is not. That reading, however, would render (d)(1) the odd man out twice over: both within section 1311(d) and among the ACA’s other definitional provisions, which, unlike (d)(1), employ the (unmistakably definitional) formula of “The term ‘X’ means . . . .” See, e.g., 42 U.S.C. §§ 300gg-91, 18024; see also 26 U.S.C. § 4980H(c).
The dissent’s reading would also require us to overlook the fact that section 1311(d) would be a strange place for Congress to have buried such a legal fiction. Section 1311, after all, concerns Exchanges that are established by states in fact; the legal fiction the dissent urges would matter only to Exchanges established by the federal government. To accept the dissent’s construction would therefore transform (d)(1) into the proverbial elephant in the mousehole—the “ancillary provision” that “alter[s] the fundamental details of a regulatory scheme.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). The Supreme Court has repeatedly held that Congress does not legislate in this manner, see id.; accord Gonzales v. Oregon, 546 U.S. 243, 267 (2006), and we see no evidence that it did so here. Indeed, we are particularly loath to accept the dissent’s construction given that there are far more natural locations to place this fiction, such as section 1321 or the provision defining the term “Exchange,” 42 U.S.C. § 300gg-91(d)(21).
Sorry, but the law was written as Gruber was claiming it was written back in 2012: The States would be forced to set up Exchanges by the threat that they would get no subsides. The threat didn’t work, the gamble failed. You want that changed? Then you’re going to have to negotiate with Republicans, and give up a lot. That’s what happens when you screw up.