The text of the law is clear
SEC. 1401. REFUNDABLE TAX CREDIT PROVIDING PREMIUM ASSISTANCE FOR COVERAGE UNDER A QUALIFIED HEALTH PLAN.
(8)(2) PREMIUM ASSISTANCE AMOUNT.—The prem-
ium assistance amount determined under this sub-
section with respect to any coverage month is the
amount equal to the lesser of—
(A) the monthly premiums for such month
for 1 or more qualified health plans offered in
the individual market within a State which
cover the taxpayer, the taxpayer’s spouse, or any
dependent (as defined in section 152) of the tax-
payer and which were enrolled in through an
Exchange established by the State under 1311 of
the Patient Protection and Affordable Care Act,
(B) the excess (if any) of—
(i) the adjusted monthly premium for
such month for the applicable second lowest
cost silver plan with respect to the taxpayer,
(ii) an amount equal to 1/12 of the
product of the applicable percentage and the
taxpayer’s household income for the taxable
It looks, at first glance, that part A does not obtain, since there is no such exchange, and so there is only part B. However, lower down, part B is clarified:
(8)(3)(B) APPLICABLE SECOND LOWEST COST
SILVER PLAN.—The applicable second lowest cost
silver plan with respect to any applicable tax-
payer is the second lowest cost silver plan of the
individual market in the rating area in which
the taxpayer resides which—
(i) is offered through the same Ex-
change through which the qualified health
plans taken into account under paragraph
8 (2)(A) were offered….
That’s definitely a problem. Neither of the two possible pricing options to determine the subsidy exists.
Some pundits have said it comes down to ONE word, “by”, not four words, “established by the State.” The fact is, it is FOURTEEN words: “established by the State under 1311 of the Patient Protection and Affordable Care Act”
The Federal Exchange is defined in section 1103, not 1311.
So what will the Supremes do?
Well, we know the progs on the bench will ignore the law — progs don’t care about laws. (Well, they don’t care about laws they don’t like. If they like a law, they’ll dig in like a tick on a hound.) So the progs will rule to uphold the subsidies, and the conservatives will vote to uphold the law as written.
I expect the swing votes to go to the progs. Why? Because they have shown no integrity. When Roberts ruled that the penalty is NOT a tax and thus the Supremes can rule on it before anyone actually pays it, then rule that it IS a tax and thus it is constitutional (the first time the Supremes have overturned a prior decision in the same decision), he has signaled to the world that he has no logical integrity, and is thus really a prog. He will rule to uphold the subsidies and write up another steaming pile to support that ruling.