The Fourth Circuit plaintiffs against ObamaCare have a new weapon if they decide to do what we think they will do and appeal directly to the Supreme Court. We’re talking HalBIG. The HalBIG we wrote thoroughly about in early July. The HalBIG we wrote about when the D.C. Circuit Court knocked ObamaCare into a death panel hospice waiting for a death certificate to be signed.
The weapon against the ObamaCare scam is none other than the “architect” of ObamaCare and what he himself said about ObamaCare.
Repeatedly and without shame pro-ObamaCare con artists repeat the lie that there was no intent to provide ObamaCare subsidies only to individuals on ObamaCare exchanges established by the states. These pro-ObamaCare liars defraud the courts and the public by insisting ObamaCare subsides were intended to go to the federal exchanges too. Now the “architect” of ObamaCare, via the magic of video, has exploded another torpedo below the waterline of the sinking S.S. ObamaCare.
Here is “architect” of ObamaCare Jonathan Gruber:
This week, an unprecedented circuit split emerged in Halbig v. Burwell and King v. Burwell over whether health insurance premium assistance is available in states that didn’t set up health insurance exchanges. Many commentators have since claimed that there’s no way Congress intended to deny premium assistance to residents of the 36 so-called “refusenik” states that have not set up their own health insurance exchanges.
But in January 2012, Jonathan Gruber—an MIT economics professor whom the The New York Times has called “Mr. Mandate” for his pivotal role in helping the Obama administration and Congress draft the Affordable Care Act—told an audience at Noblis that:
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. So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges. But, you know, once again the politics can get ugly around this.
Start the video at 31:25. For more on Professor Gruber’s crucial role in designing the ACA, see this 2012 profile of him in The New York Times and this release from MIT’s press office, which describes Gruber as the architect of the “three-legged stool” concept discussed at length by the Fourth Circuit opinion in King v. Burwell.
The Fourth Circuit judges who issued their convolution mess of an opinion must be hiding behind their toilets muttering epithets against Jonathan Gruber, who, because of his video, exposes them as idiots. Likewise the D.C. Circuit judges must be basking in the blessed glow of justice:
Earlier this week, a three-judge panel in the D.C. Circuit Court ruled that, contrary to the Obama administration’s implementation and an Internal Revenue Service rule, Obamacare’s subsidies for private health insurance were limited to state-run health exchanges.
The reasoning for this ruling was simple: That’s what the law says. The section dealing with the creation of state exchanges and the provision of subsidies states, quite clearly, that subsidies are only available in exchanges “established by a State,” which the law expressly
defines as the 50 states plus the District of Columbia.
Obamacare’s defenders have responded by saying that this is obviously ridiculous. It doesn’t make any sense in the larger context of the law, and what’s more, no one who supported the law or voted for it ever talked about this. It’s a theory concocted entirely by the law’s opponents, the health law’s backers argue, and never once mentioned by people who crafted or backed the law.
It’s not. One of the law’s architects—at the same time that he was a paid consultant to states deciding whether or not to build their own exchanges—was espousing exactly this interpretation as far back in early 2012, and long before the Halbig suit—the one that was decided this week against the administration—was filed. (A related suit, Pruitt v. Sebelius, had been filed earlier, but did not challenge tax credits within the federal exchanges until an amended version which was filed in late 2012.) It was also several months before the first publication of the paper by Case Western Law Professor Jonathan Adler and Cato Institute Health Policy Director Michael Cannon which detailed the case against the IRS rule.
ObamaCare con artists say one thing; ObamaCare scam opponents say the contrary. Who’s correct?:
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.
One of the architects of the fight against ObamaCare exemplified by HalBIG is about to giggle himself to death as he laughs about his absolutely great good fortune:
The central issue is whether the PPACA allows the IRS to issue tax credits through health-insurance Exchanges established by the federal government. Said government argues it’s implausible that Congress intended to withhold tax credits in states that don’t establish Exchanges. On Tuesday, the D.C. Circuit set off a firestorm when it ruled in Halbig that the PPACA’s language authorizing tax credits “through an Exchange established by the State” cannot be reasonably construed to authorize them in the 36 states with federal Exchanges. On the same day, the Fourth Circuit reached the opposite conclusion in King. On Thursday, however, the plaintiffs’ interpretation got another boost from an architect of the PPACA named Jonathan Gruber.
The government argued in Halbig that the potential for adverse selection makes “it…untenable to suggest that Congress withheld premium tax credits from individuals who live in States with federally-run Exchanges. Congress sought to reform the non-group market, not to destroy it.” The government described as “baseless” the Halbig plaintiffs’ claim that Congress used the tax credits as an inducement to encourage states to establish and operate Exchanges.
These arguments did not fare well in court. The D.C. Circuit found that the PPACA “encourages” states to establish Exchanges. Moreover, in other parts of the statute—the “CLASS Act” and the law’s treatment of U.S. territories, to name two—Congress showed a rather high tolerance for adverse selection, so the fact that a provision created the potential for adverse selection in the Exchanges did not render it implausible. Finally, even as the Fourth Circuit found the plaintiffs’ reading of the statute “plausible,” implicitly rejecting both of the government’s implausibility claims, even as it ultimately ruled for the government.
The plaintiffs’ interpretation became even more plausible with the discovery of a January 2012 presentation by Massachusetts Institute of Technology economist Jonathan Gruber. I’ll get to why Gruber is significant in a moment. For now, note how he unequivocally agrees with the plaintiffs’ interpretation: the PPACA only allows tax credits in states that establish Exchanges.
It’s like O.J. Simpson walking into court with a knife soaked in Nicole Brown’s blood. Yeah, it’s that bad.
Questioner: You mentioned the health-information Exchanges for the states, and it is my understanding that if states don’t provide them, then the federal government will provide them for the states.
Gruber: Yeah, so these health-insurance Exchanges, you can go on ma.healthconnector.org and see ours in Massachusetts, will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law, it says if the states don’t provide them, the federal backstop will. The federal government has been sort of slow in putting out its backstop, I think partly because they want to sort of squeeze the states to do it.
I think 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. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it. But you know, once again, the politics can get ugly around this.
Here’s the video (skip ahead to 31:25):
Gruber doesn’t just acknowledge the conditional feature of the PPACA’s tax credits. He also supplies a plausible purpose for that feature (there were people in Washington who either wanted to “squeeze the states to do it,” or saw the law as directing them to do so). He describes the mechanism by which this provision achieves that purpose (taxpayers will pressure their state officials to create Exchanges so they can receive tax credits). He acknowledges that the conditional nature of the tax credits sits perfectly well alongside the law’s requirement that the federal government establish an Exchange within states that do not (providing another refutation of the argument offered by Yale law professor Abbe Gluck that these provisions are somehow in tension). He even explains why the Obama administration might try to ignore this part of the law (the politics of the PPACA “can get ugly,” and the lure of tax credits might not be enough to induce states to cooperate).
I couldn’t have said it better myself.
Gruber is now pleading amnesia and disavowing what he said in the video. Gruber has no choice but to plead a form of insanity because in many televised appearances he has angrily denied saying what he said when he says he does not remember because he does not remember what he said or didn’t say or can’t remember he said and anyway STOP QUOTING ME because I can’t remember saying what I said and I could never have said what I said because I am on with O’Tingles calling the plaintiffs and their case “screwy” “nutty” and stupid” – and yes I joined an amicus on those two court cases and I have testified before state legislatures specifically saying things contrary to what I said in the video and LEAVE ME ALONE… I’m having a nervous breakdown and hope no one checks to see if I said anything under oath or wrote anything under oath knowing full well well I was lying, and perjury, and OMG… leave me alone… and anyway it was only one time I said it… leave me alone….
“I was speaking off-the-cuff. It was just a mistake,” he claims. He added, “My subsequent statement was just a speak-o—you know, like a typo.” A typo is usually a simple slip of the finger on the keyboard, i.e. a misspelling or missed bit of punctuation. Gruber’s statement is nearly a minute long.
Also, it turns out it was not the only time he made such a statement. An audio clip from a public appearance Gruber made at the Jewish Community Center of San Francisco on January 10, 2012 reveals he made the same connection between subsidies and state-based exchanges on at least one other occasion (hat tip to MorgenR).
It wasn’t a bug. It was a feature.
The architect of ObamaCare built ObamaCare on sand, not on a solid foundation. Now ObamaCare architect Jonathan Gruber is one of the biggest threats to ObamaCare. Justice.