'Among those who say they are surprised by the statement is Gruber himself, whom I was able to reach by phone. "I honestly don’t remember why I said that," he said, attempting to reconstruct what he might have been thinking at the time. "I was speaking off-the-cuff. It was just a mistake." As evidence that it was not indicative of his beliefs, he noted that his projections of the law's impact have always assumed that all eligible people would get subsides, even though, he said, he did not assume all states would choose to run their own marketplaces.'

The broader context is extremely important. Some people portray the law as written as a mere typo, or oversight -- that Section 36B providing tax credits / subsidies only for exchanges "established by the states" shouldn't mean what it actually says, because it was never "meant to".

What this essay reminds us of, is in fact there is a legislative balance which was struck here, and a choice which was actually relegated to individual states, similar to the choice to expand Medicaid which each state [currently] makes individually.

The ACA was written such that states could opt-in to ACA taxes on businesses in order to pay subsidies for individual plans by establishing an exchange, or they could opt-out of those same taxes and subsidies by not establishing an exchange. That plain english law has now been throw out to allow the Federal government to impose the subsidies on all states, and likewise, impose the taxes on larger employers. Whether you personally believe in one system over another is a separate matter than whether it's a good thing for the Supreme Court to be calling the shots.

When the IRS decided that the Federal exchange qualified individuals for the subsidies, against the plain English meaning of the actual law, the IRS was also subjugating the states' designated right to decide whether they want to provide subsidies for individuals and likewise taxes/penalities on large employers whose employees end up claiming those subsidies.

Part of the problem is the law is simply too complex for even a concerned citizen to wrap their heads around. How many people understand that large employers (50+ employees) are directly penalized on an employee-by-employee basis for each of their employees who qualify for and claim a subsidy on the marketplace? Believe it or not, the subsidy dollars don't just get printed by the Treasury -- they are assessed directly against the employer.

If you don't understand the dynamics of the law, it may seem like the "established by the state" is a pedantic distinction. If you spend about 80 hours actually studying the law you will more likely come to the conclusion that states choosing Medicaid expansion and states choosing to establish their own exchanges with premium subsidies were both actually intentional and central parts of the legislation.