When the Halbig v. Burwell ruling came out last week, lefties like the New Republic reached out to Jonathan Gruber after their initial spin failed. Their initial spin consisted of this being a drafting error which should be excused by the courts.

When conservative bloggers found a video of Jonathan Gruber saying that health insurance subsidies were only available to people buying health insurance through state-established exchanges, TNR called Gruber. Dr. Gruber immediately backtracked by saying what he said was “a speak-o”. Michael Cannon’s op-ed blows that spin out of the water:

The administration’s defenders responded to the Halbig case by insisting that Congress never intended to withhold subsidies from residents of states that did not establish exchanges. Like the Obama administration, Gruber told the D.C. Circuit that this idea is “implausible.” The D.C. Circuit disagreed when it ruled for the plaintiffs last Tuesday.

Gruber then became part of the story on Thursday when a video surfaced in which he espouses the very interpretation of the law he now publicly derides as “screwy,” “nutty” and “stupid.” In 2012, Gruber told an audience: “If you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits.”

Frankly, this appears to be proof that Dr. Gruber is willing to say anything to save his greatest legislative achievement. There’s no question what the legislative language says, which is the only thing the courts can go by.

As damning as that is, this is the part of Cannon’s op-ed that sinks Dr. Gruber:

The problem with his explanations is that Jonathan Gruber doesn’t “flake.” He knows this law in and out. He knew what his words meant, with all their implications, when he spoke them. He knew the feature he was describing essentially gave each state a veto over the PPACA’s exchange subsidies, employer mandate and to a large extent its individual mandate. He knew that could lead to adverse selection. To claim Gruber didn’t know what he was saying is as absurd as saying a conductor might fail to notice that the brass section suddenly stopped playing.

It’s rich that the guy who boasts that he knows “more about this law than any other economist” suddenly left to dissembling when he’s caught spinning.

Richard Epstein’s explanation of the ruling is compelling and succinct:

Do the words an “exchange established by a State” cover an exchange that is established by the federal government “on behalf of a state”? To the unpracticed eye, the two propositions are not synonyms, but opposites. When I do something on behalf of myself, it is quite a different thing from someone else doing it on my behalf. The first case involves self-control. The second involves a change of actors. It is not, moreover, that the federal government establishes the exchange on behalf of a state that has authorized the action, under which case normal principles of agency law would apply. Quite the opposite: the federal government decides to act because the state has refused to put the program into place. It is hard to see, as a textual matter, why the two situations should be regarded as identical when the political forces at work in them are so different. Under the so-called “plain meaning approach”, there is no need to look further. The text does not authorize the subsidies for these transactions, so it is up to Congress to fix the mess that it created in 2010.

The only context needed is the text itself. It’s clear that language agreed upon means that the only people who are eligible for subsidies are people who bought them through state-established exchanges. There’s no question that the federal government used this carrot-and-stick approach to coax states into creating exchanges. There’s also no question that the federal government couldn’t force states to create these exchange.

That’s considered commandeering by the federal government, which isn’t allowed in our federalist system of governance.

This is enlightening information, too:

Last year, seven career Treasury and IRS officials told congressional investigators that they knew the PPACA did not authorize them to issue tax credits in federal exchanges, and that their regulations had originally confined tax credits to exchanges “established by the State.” At the direction of their political-appointee superiors, however, they dropped that language and announced that tax credits would be available through exchanges established by the federal government as well.

Isn’t it interesting that the rules didn’t change until after President Obama’s political appointees ordered the rule changes? That clearly shows the IRS regulation changing the clear intent of the ACA was an act of political mischief.

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One Response to “Jonathan Gruber, stylish flip-flopper edition”

  • MtkaMoose says:

    The hypocrisy is just stunning. There is no standard of logic to Liberals by because everything is situational. Gruber and other democrats now argue ‘that the most important thing is the ‘original intent’ for Obamacare. Why then do they deny original intent is important in deciding on constitutional court cases? There they want a ‘living’ constitution.

    Expediency is not a standard anyone can live by. It’s only another justification that might makes right which is totalitarianism.

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