As for the Gruber quote, it's a fascinating quote, but by introducing it, aren't you agreeing that contextual factors - such as how people who voted on the law, debated the law, and experts on the law, behaved, are relevant? Gruber points out 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." If you only look at Gruber's words and actions, I agree that they're contradictory, but if you take the whole picture of the law's drafters' actions before this issue came up, it's clear that people were meant to receive subsidies on state exchanges.
I guess you meant to say subsidies were supposed to exist even when there is not a state exchange. The key phrase here is " through an Exchange established by the State under 1311." Even if the Federal exchange qualifies as an Exchange under 1311, as the Government argues, it can't be said to be an Exchange established by the State absent any state action. That is what is written. The government's best defense is that it was a drafting error, a thoughtless omission, and they didn't write the law the way the meant to. I don't know that people acting a certain way in response to a law defines the meaning of that law against the plain meaning of the text. If members of Congress explicitly stated during debate that people would get subsidies even if they did not have an exchange set up by the state where they reside, and this was not challenged by other members, then it might show different intent and could be significant. Then again perhaps it is possible for Congress to pass a bill its members do not fully understand - I think in fact this is often assumed to be the case both by the Courts and by the Executive.
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