Jonathan Gruber’s testimony before Congress last week was a series of apologies, evasions, denials, and outright lies. The MIT professor widely acknowledged to be the “architect of Obama-care” before it was known that he attributed passage of the law to legislative deception and the “stupidity of the American voter” began his opening remarks by declaring: “I was not the ‘architect’ of President Obama’s health care plan.” He later refused to say how much money he’d made from his consulting and speeches on Obama-care. But the most staggering and consequential falsehood spoken by Gruber came when he tried to explain away his previous claim that states do not qualify for subsidies under Obamacare if they do not set up their own exchanges (the subject of a Supreme Court case, King v. Burwell, that could destroy the law).
Gruber said during his opening prepared remarks:
During follow-up questioning, Rep. Justin Amash of Michigan pointed out that Gruber’s explanation doesn’t make sense. “The law requires the federal government to create Obamacare exchanges in states that refuse to create the exchanges for themselves,” Amash said. He was right: The law clearly states the secretary of health and human services “shall” establish an exchange in states that fail to do so. So, Amash continued, “What did you mean when you repeatedly said that the citizens of some states may not qualify for Obamacare tax credits?”
“When I made those comments, I believe what I was saying was reflecting uncertainty about the implementation of the federal exchange,” Gruber insisted. “I don’t recall exactly what the law says.”
Gruber was clearly not telling the truth to Congress. At the very same 2012 speaking engagement in which he said states don’t get subsidies if they don’t set up their own exchanges, he acknowledged that the federal government is directed to set up exchanges in states that decline to do so:
Audience Member: You mentioned the health information exchanges for the states. And it’s my understanding that if states don’t provide them then the federal government will provide them for the states.
Gruber’s 2012 remarks—and his failure at the December 9 congressional hearing to plausibly walk them back—have dealt a great blow to the government’s defense in King v. Burwell. Before he became a controversial figure, it would have been entirely uncontroversial to state that Gruber knew more about how the law actually works than Nancy Pelosi, Barack Obama, or Max Baucus. “I was involved in writing the legislation,” Gruber said in a 2010 lecture. “I know more about this law than any other economist,” Gruber told the New York Times in 2012.
Gruber’s remarks are consequential not because the Supreme Court will look to them to determine legislative intent, but because they will significantly affect the legal and political debate surrounding King v. Burwell. Democrats and their allies in the media have tried to create a political environment in which the pressure on the Supreme Court would be simply too great for the Court to rule against the government. When cases challenging the legality of Obamacare subsidies began making their way through the courts, liberals roundly mocked and ridiculed the idea that the federal government had broken the law.
In 2013, Gruber himself told Mother Jones that the lawsuits were “screwy . . . nutty . . . stupid”:
After the 2012 video of Gruber saying the opposite was unearthed by Rich Weinstein, a private citizen and investment adviser, and circulated by the Competitive Enterprise Institute, no intellectually honest person could argue that the interpretation that states don’t get Obamacare subsidies if they don’t set up exchanges is absurd. As federal judge Ronald A. White wrote in another case challenging Obamacare’s subsidies in states without their own exchanges, “The court takes [Gruber’s] statement for the limited relevance of words of interpretation, not intent. That is to say, the statement cuts against any argument that the plaintiff’s interpretation is absurd on its face, or that plaintiff’s argument that the statutory language might support a reading of ‘incentivizing’ states to set up exchanges is ‘nonsense, made up out of whole cloth.’ ”
The political debate surrounding a legal case isn’t supposed to influence its outcome, of course, but we know that political pressure may have already saved Obamacare once. As Jan Crawford of CBS reported, Chief Justice John Roberts initially sided in 2012 with four other Supreme Court justices to strike down the individual mandate as unconstitutional. As pressure began to mount, Roberts inexplicably changed his mind and decided to uphold the provision of the law with a jesuitical argument that it was a constitutional tax rather than an unconstitutional mandate. This led many to conclude he changed his mind out of fear for the reputation of the Court.
“That’s where the Gruber recordings are really going to have the greatest impact. It creates space for the Court to do the right thing over the objections of people who want the Court to rewrite the law,” says Cato scholar Michael Cannon, one of the masterminds behind King v. Burwell. “I think the odds are still against the plaintiffs, but it’s not because the facts of the law are not on their side,” Cannon tells The Weekly Standard in an interview. “It’s just that it’s a high-stakes case. If this weren’t about Obamacare, the Court would rule for the plaintiffs nine to nothing.”
John McCormack is a senior writer at The Weekly Standard.
