As all the world now knows, Obamacare architect Jonathan Gruber is on video explaining that under the ACA, tax subsidies will only be available to individuals who enroll in state-created exchanges, and will not be available to those who participate in the federal exchange. In other words, the limitation of subsidies to state exchanges was a deliberate policy, intended to give states a major incentive to create exchanges, and not a “typo” as liberals are now claiming. Which, in turn, means that the Halbig majority was right.
So Jonathan Cohn contacted Gruber to ask him for a reaction to the now-famous video. Ed Morrissey quotes Gruber’s response:
I honestly don’t remember why I said that. I was speaking off-the-cuff. It was just a mistake. People make mistakes. Congress made a mistake drafting the law and I made a mistake talking about it.
During this era, at this time, the federal government was trying to encourage as many states as possible to set up their exchanges. …
At this time, there was also substantial uncertainty about whether the federal backstop would be ready on time for 2014. I might have been thinking that if the federal backstop wasn’t ready by 2014, and states hadn’t set up their own exchange, there was a risk that citizens couldn’t get the tax credits right away. …
But there was never any intention to literally withhold money, to withhold tax credits, from the states that didn’t take that step. That’s clear in the intent of the law and if you talk to anybody who worked on the law. My subsequent statement was just a speak-o—you know, like a typo.
If you have watched the video, this is ludicrous. Ed comments:
In order to believe that, though, you’d have to ignore the plain meaning of the question Gruber was asked, and the plain meaning of the answer he gave. Gruber explicitly identifies states balking at running exchanges as one of the three main threats to the success of ObamaCare, at the 28-minute mark in the full video…
Yes. Gruber’s comments are not exactly ambiguous:
Q: You mentioned the health implementation exchanges in the states, and it’s my understanding that if states don’t provide them, then the federal government will provide them. What do you say to that?
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.
Also, per Glenn Reynolds, a second recording has emerged of Gruber saying the same thing o different occasion. Another speak-o!
Like so many things that liberals say, Gruber’s denial is not intended to persuade the intelligent, but rather to fool the ignorant.
But I want to make a broader point about the claim, advanced by large numbers of Democrats, that the operative language of the ACA–“established by the State under section 1311”–was a “typo.” This assertion is ridiculous on its face. If the statute was printed and came out looking like this–“established by the Stat under section 1311”–that would be a typo, and a court would read “state” for “stat.” But the absence of any reference to a federally-established exchange, while it could be a mistake, is not a typo.
The Democrats’ willingness to add language to a statute that is plainly not there is one more manifestation of their general lawlessness. If the rule of law means anything, it means that we are governed by what the law says. If bureaucrats (here, the IRS) decide that the law would be better if it said something different, and judges defer to the bureaucrats’ “interpretation” of the statute, we are no longer living under the rule of law. Instead, we are living under a regime of arbitrary decree by the political party in power. Sadly, it appears that almost all Democrats, and a very large number of Democratic judges, want exactly that sort of regime to prevail.