by Jon Sanders
Research Editor and Senior Fellow, Regulatory Studies, John Locke Foundation
The initial self-serving lie — “The judges’ ruling rests on what is essentially a typo in the lengthy health care law” — about Halbig has been put to rest.
Right, it had already been put to rest, but new revelations are throwing heaping shovelfuls of dirt on the grave. See Katherine Restrepo’s post today for details. (Update: See below for another example.)
Video has surfaced of MIT economist Jonathan Gruber — architect both of Obamacare and its Massachusetts predecessor — explaining in 2012 that
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.
Then the other shoe drops as to this federal squeeze play:
I think what’s important to remember politically about this, —
Get that? What he is about to say next is what he is prefacing as 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.
Granted, the next self-serving lie will be animated soon. It’d be nice to hope for an actual rethinking of the terrible — and terribly flawed amid its terribleness — law, but this regime and its voluntary media mouthpieces don’t question divine dictates, so instead they have to find new ways to explain the wonderfulness of the obvious failing.
So instead, I’m left hoping that the new lie will exhibit some modicum of cleverness. That is, I sure hope the best they can come up with isn’t Gruber really didn’t mean it—it was just a slip of the tongue that by some bizarre twist of fate happens to dovetail exactly with the clear, plain meaning of the “drafting error.”
Updated 2:54 p.m.
It appears that Gruber had this “slip of the tongue” more than once. Michael Cannon has found another recording of Gruber explaining in January 2012 (see the 2:18 update below for the relevance of the timing) the law’s intent:
A number of states have even turned down millions of dollars in federal government grants as a statement of some sort. They don’t support health care reform. I guess I’m enough of a believe in democracy to think that when the voters in states see that by not setting up an Exchange, the politicians in their state are costing state residents hundreds of millions and billions of dollars that they’ll eventually throw the guys out. But I don’t know that for sure. And that is really the ultimate threat, is: Will people understand that, gee, if your governor doesn’t set up an Exchange, you’re losing hundreds of millions of dollars of tax credits to be delivered to your citizens? So that’s the other threat, is: Will states do what they need to do to set it up?
Updated 2:18 p.m.
Slate, again blaming libertarians (though this time in the headline), acknowledges the painful:
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.
No doubt their hope is still in blatantly partisan judges.