In 2012, Obamacare advisor Jon Gruber said, “if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits,” an interpretation of the ACA that supports the anti-Obamacare Halbig ruling. He made this point more than once. Nicholas Bagley dismisses the fracas over these comments:
[I]f you think what Gruber said is some evidence about what the ACA means, you can’t ignore other, similar evidence. That’s cherry-picking. So go ask John McDonough, who was intimately involved in drafting the ACA and is as straight a shooter as there is: “There is not a scintilla of evidence that the Democratic lawmakers who designed the law intended to deny subsidies to any state, regardless of exchange status.” Or ask Senator Max Baucus’s chief health adviser, Liz Fowler. She says the same thing. Or ask Doug Elmendorf, the current CBO Director: “To the best of our recollection, the possibility that those subsidies would only be available in states that created their own exchanges did not arise during the discussions CBO staff had with a wide range of Congressional staff when the legislation was being considered.” …
Better still, ask the states, which were on the receiving end of the supposed threat. According to a report from the Georgetown University Health Policy Institute, there’s no contemporaneous evidence that the states feared that declining to set up an exchange might lead to a loss of tax credits. How can it be that Congress unambiguously threatened the states with the possible loss of tax credits if the states never understood that threat?
How Ezra views this controversy:
Gruber’s comments aren’t getting so much attention because anyone actually believes them. They’re getting so much attention because some people want other people to believe them.
It would be much simpler if the argument about Obamacare could simply be about what it’s actually about: some people believe the Patient Protection and Affordable Care Act is a good law. Others believe it’s a bad law and they would like to see it repealed.
The problem is that the people who believe it’s a bad law haven’t won the elections necessary to repeal it. So they’ve turned, in desperation, to the courts. But the Supreme Court doesn’t strike laws down for being bad. It strikes them down for being unconstitutional, or incomprehensible. And that’s forced Obamacare’s critics to make some very weird and very weak arguments.
Adrianna McIntyre chimes in:
Though the controversy over what Gruber said — and what he did or didn’t mean by what he said — has been newsy and potentially embarrassing, it’s not actually very consequential, legally. Courts put much more stock in the words that Congress chose when enacting the law, and the context in which Congress put those words, than what people say about the law.
While Gruber was certainly a key advisor during the Obamacare debate, he was not a member of Congress who voted to pass the actual law. And that likely gives his words less weight than those of legislators in front of the courts.
Weigel thinks the “timing of the speech is important”:
Gruber said this in January 2012. It wasn’t until May 2012 that the IRS issued a rule, clarifying that subsidies would also be available to the states that joined the federal exchange. And it wasn’t until July 2012 that Cannon and Adler published their paper making the argument that the language of the law forbade any such mulligan for states.
But this bolsters the libertarians’ case. Gruber is acknowledged, by everyone, as an architect of the ACA. There is, to date, no evidence that he flogged the carrot/stick subsidies idea on Congress, and as Cannon writes in a piece at Forbes, Gruber has done hours of scoffing at the rationale behind Halbig. It just happens that in early 2012, when Cannon was barnstorming states to get them to avoid creating exchanges, Gruber was telling them they had better create exchanges or they wouldn’t get subsidies.
Ben Domenech celebrates:
It’s rare that a piece of video evidence comes along which, in an instant, so clearly and thoroughly undermines the case that one faction has made so consistently. I’m a little shocked myself, and interested to see how the people who’ve been calling Michael Cannon nuts for years offer their mea culpas. Because they will do that, right?
McArdle makes simular remarks:
We can draw two conclusions from this: First, the reading of the law by Halbig’s plaintiffs is clearly not ridiculous or dishonest; if it is a mistake, it is a mistake that one of the law’s chief architects could make. And second, we should be very skeptical of people who are now telling us, four years later, what the legislative intent was. Memory really is extraordinarily unreliable, and as we see here, it’s very easy to forget what you believed even a couple of years ago. This is one reason that courts ignore post-facto statements about intent and concentrate on the legal text and the legislative history.
But Scott Galupo calls the controversy “pure unmitigated cuckoo cockamamie BS”:
The cherry-picking of off-the-cuff remarks isn’t the worst thing about this absurdist drama. Take a step back: Michael Cannon, the Cato mastermind, basically went on a fishing expedition to find someone with standing in the Halbig case. His lightbulb: the average citizen has standing! And now this bombshell video: the Gruber remarks were the first and so far only piece of documentary evidence I’ve seen that anyone actually believed subsidies weren’t intended to be offered via the federal exchanges. This evidence was discovered two years after the lawsuit was filed.
Waldman piles on:
If this was actually what Congress thought the law would do, then liberals would have been freaking out about this provision for years, because it would mean that millions of people wouldn’t be able to get coverage. And conservatives would have been crowing about it for years, for the same reason. But nobody on either side was, because it was never part of Congress’s intent. It was a mistake, and one contradicted by multiple other provisions in the law.
I have no doubt that when the Halbig case is re-argued before the full D.C. Circuit, either the plaintiffs’ attorneys or one of the conservative judges will bring up Gruber’s 2012 comments. Let’s just hope it gets shot down like the baloney it is.