This 2012 video of Jonathan Gruber, a key Obamacare architect, is making the rounds:
The line of Gruber’s that stands out:
What’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits—but your citizens still pay the taxes that support this bill.
Ed Morrissey pounces:
So is this a smoking gun in the Halbig case? Politically — yes. Legally? It certainly undermines one argument used by the administration to defend payment of subsidies through the federal exchanges, but it may not be entirely dispositive. What matters here is Congressional intent, not Gruber’s, to the extent that the statute itself appears ambiguous.
Aaron Carroll dismisses the video:
Is there a single CBO analysis which documents what would happen if states refused to set up exchanges and would therefore “lose” their subsidies? Were any of Gruber’s models set up in this manner? If not, then I don’t understand how anyone in Congress or who set up the law thought it was going to work. I accept that the law was written poorly. I accept that there may be individuals who thought it would work in the way the DC Circuit majority said. But there are tons of analyses, reports, interviews, and more that show that no one involved thought that way.
But Michael Cannon sees Gruber’s comments as a big deal:
Now why should we care about what this one health economist says about this hotly disputed feature of the PPACA? Gruber is not a member of Congress, so this isn’t direct evidence that Congress intended to offer tax credits only in state-established Exchanges. (The procedural path the bill took through Congress is dispositive evidence of that.) But he may be the next best thing.
Gruber was an architect of both the PPACA and its Massachusetts precursor, “RomneyCare.” In 2009 and 2010, he was a highly paid advisor to the Obama administration during the congressional debate that produced the PPACA. According to the New York Times, “the White House lent him to Capitol Hill to help Congressional staff members draft the specifics of the legislation.”Later the above video, Gruber boasts of having written part of the PPACA. He boasts to the Times, “I know more about this law than any other economist.” He’s probably right about that.
Suderman chimes in:
There can be no doubt, based on his record, that Gruber is a supporter of the law. He says so in the presentation. “I’m biased, I’m in favor of this type of law, I won’t hide that,” he says. He also explains early on that his entire presentation is made of “verifiable objective facts.”
And what he says is exactly what challengers to the administration’s implementation of the law have been arguing—that if a state chooses not to establish its own exchange, then residents of those states will not be able to access Obamacare’s health insurance tax credits. He says this in response to a question asking whether the federal government will step in if a state chooses not to build its own exchange. Gruber describes the possibility that states won’t enact their own exchanges as one of the potential “threats” to the law. He says this with confidence and certainty, and at no other point in the presentation does he contradict the statement in question.
To be sure, this was still two years after the law passed, and my understanding is that the court is not supposed to pay attention to post-facto statements about the law’s effect or intent. But unless this is some sort of elaborate hoax, I think this definitively puts to rest the notion that none of the bill’s architects could possibly have thought or intended that the law would have this effect. Gruber thought the law would have this effect — and if anyone would know, he would.
Cohn gets a response from Gruber:
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.
Previous Dish on Halbig here.