The senator said he doesn't recall any discussion during the drafting of the law to forbid subsidies on the federal exchange. "No," he said. "I don't know of anything like that." He suggested the judges misconstrued what is, at best, a poorly worded section of the law. "The Fourth Circuit [Court of Appeals] got it right," he said, referring to a separate circuit court ruling that upheld the subsidies.
The Obama administration intends to request an en banc ruling at the D.C. Circuit, or a re-vote where all active judge may participate. Harkin, who is retiring in January, said there's "no doubt" in his mind the full bench will reverse the decision, after which he predicted the Supreme Court wouldn't take the case.
"It was a three judge panel that decided that. Two of them are Republicans, one's a Democrat, and they just decided that way," he said. "They've appealed it to an en banc setting and it'll be overturned. There's no doubt in my mind."
If the ruling stands it would blow a huge hole in Obamacare and imperil the sustainability of other core provisions of the law. Millions of Americans would see their premiums rise, some of whom would no longer be able to afford insurance.