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The Agony of Jonathan Gruber: Michael F. Cannon’s Revenge

Does Earth-2 Jonathan Gruber also love birds?


This week there’s been a ton of talk about the Halbig case, and the left has been consistently advancing the notion that this is all a Republican lie based on a typo or a drafting error. Sean Davis debunked that notion here. But one of the foremost advocates of this view is Obamacare architect Jonathan Gruber. He was on MSNBC just the other day talking about it:

“Chris, it is unambiguous this is a typo. Literally every single person involved in the crafting of this law has said that it`s a typo, that they had no intention of excluding the federal states. And why would they? Look, the law says that people are only subject to the mandate if they can afford insurance, if it’s less than 8 percent of their income. If you get rid of these subsidies, 99 percent of the people who would get subsidies can no longer afford insurance, so you destroy the mandate. Why would Congress set up the mandate and go through all that political battle to allow it to be destroyed? It’s just simply a typo, and it’s really criminal that this has even made it as far as it has.”

I think Jonathan Gruber should take up this argument with someone who holds the opposite view: Jonathan Gruber, back in 2012. Check the answer he gives around 31 minutes in.

Here’s what Gruber says, in a total vindication of the Halbig case:

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 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 Peter Suderman on the tale of the tape:

In January of 2012, Gruber told an audience at Noblis, a technical management support organization, that tax credits—the subsidies available for health insurance—were only available in states that set up their own exchanges. A video of the presentation, posted on YouTube, was unearthed tonight by Ryan Radia at the Competitive Enterprise Institute, a libertarian think tank which has participated in the legal challenge to the IRS rule allowing subsidies in federal exchanges.

And here’s Veronique de Rugy on all the other times Gruber has shifted his arguments for the law around:

As I wrote a few months ago, this is also the same Gruber who said in January that Obamacare wasn’t designed to save money, even calling the idea that savings were a “misleading motivator” for Obamacare. This was after he very actively promoted the deficit-reducing side of the law before it was adopted and called Obamacare “a historic and cost-effective step in the right direction” toward saving our health-care cost problems. He’s also the guy whose work was used to create the appearance of a consensus among health economists about the ACA, without revealing that he was a paid contractor.

Yowch. Maybe he can make an argument this was an evil twin? A time traveler? Does Earth-2 Jonathan Gruber also love birds?

One additional note: The whole process around Halbig has been an object lesson in why no one should ever doubt the dogged determination of Cato’s Michael F. Cannon, whose insistence that words mean what they mean and not merely what bureaucrats say that they mean – a revolutionary concept in this age of executive discretion! This case was spearheaded by Cannon and law professor Jonathan Adler; a lot of people didn’t take this issue seriously at the time, but there are a number of signs that Cannon and Adler really are correct about what went down, even if they offered an argument largely dismissed by the law’s advocates. Now they’ve been vindicated by the court and by Gruber’s own words.

The ramifications of Halbig could potentially be huge: it would mean that the White House has been breaking the law by distributing funds they were never authorized to spend, and enforcing mandates that were never supposed to go into place. Should the Supreme Court confirm this view, it would essentially transform the Obamacare project’s impact on private insurance in much the same way that the Court’s decision transformed the Medicaid expansion – from a gun-to-the-head decision for the states into an opt-in, opt-out choice, just as Gruber framed it in the video.

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?

Update: After defending himself to TNR this morning by saying he had simply misspoken, a second audio recording of Gruber going into even more detail has surfaced via John Sexton:

This isn’t just at odds with what Gruber has argued for the past several years – it’s also at odds with the amicus brief he filed in the Halbig case.