Government Tells Gruber Lie to the Supreme Court - American Commitment

By Phil Kerpen
Jonathan Gruber was, in the lower courts, the government’s principal expert. They relied on his “three-legged stool” metaphor to argue that (even though the law says they are only available through an “exchange established by the state”!) subsidies must be available through federal exchanges. Then he was caught on tape, not once but twice, expressly explaining states that don’t establish an exchange won’t get subsidies. Oops. After Gruber became even more famous for accidental candor – calling the American people stupid and worse – he went to Congress to apologize over and over again. He also claimed his caught-on-tape explanations of the subsidy provisions were mistaken, a claim now cited in multiple briefs before the Supreme Court. It’s just one more lie.
Star citizen-researcher Rich Weinstein, who discovered the Gruber tapes, once again has the goods. In a briefing document he sent me, Weinstein laid out a timeline that makes the latest Gruber lie clear.
The comments in question came on January 10, 2012:

“Now, I guess I’m enough of a believer in Democracy to think that when the voters in States see that by not setting up an exchange the politicians in the State are costing state residents hundreds and 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. 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. Will states do what they need to do to set it up?”
And again January 18, 2012:

“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 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.”
Very clear – and it means Gruber lied in his own amicus brief to the DC Circuit, when he wrote: “Appellants’ interpretation of the ACA cannot be squared with the basic economic framework undergirding that statute.”
So how did Gruber try to explain away his own statements? He told Congress:
“The portion of these remarks that has received so much attention lately omits a critical component of the context in which I was speaking. The point I believe I was making was about the possibility that the federal government, for whatever reason, might not create a federal exchange.”
This excuse is quoted to the Supreme Court in the government’s official brief as well as amicus briefs by Harry Reid and Nancy Pelosi, the AARP, and a group of liberal professors.
But it’s a lie. How do we know?
When Rep. Scott DesJarlais pointed out the law requires a federal fallback exchange and asked Gruber whyhe was concerned there wouldn’t be one, Gruber said:
“I was concerned about the Federal exchanges because it was a very complicated task to get them set up and we weren’t sure who would be President when the time came to stand them up.”
This explanation can’t be true, because in both of the 2012 talks Gruber presented the risk of state resistance as one of the other threats to the law in addition to the risk Obama would lose reelection. And here’s the thumper, the latest find from Weinstein. Gruber was still publicly expressing his concerns about states not setting up exchanges after the election.
In March 2013, months into Obama’s second term, Gruber said this to interviewer Gillian Roberts:

“I think the piece that isn’t going so well is the next step with states. A number of states have done a great job and are getting ready to go for 2014. But a lot of states are uncertain and there are other states that are, unfortunately, playing a terrible political game at the cost of their state residents in not developing exchanges.”
Which states, specifically?
“In terms of moving the legislative process forward, California, Maryland and Connnecticut come to mind. Massachusetts was already there, of course. There are probably 10 states total that are ready for opening exchanges. Then there are the ones that are part of the large middle group that are sort of tip-toeing around legislation and preparedness for the law. The last group is the one that’s the most worrisome to me. They’re the states that are those stick-it-to-the-man Conservative states that are trying to make political hay out of doing nothing.”
Obama was already reelected. The federal exchange was certain to be built. Yet Gruber was most worried about those conservative states sticking it to the man by not establishing exchanges – “at the cost of their state residents.” Clearly, his concern that non-establishing states would effectively block subsidies had nothing to do with the presidential election or a fear that the federal exchange would not be built. Gruber was simply able to read “established by the state” and understand its obvious meaning.
The government feels the need to tell the Supreme Court that Gruber’s 2012 remarks “were taken out of context.” They weren’t. It’s just one more Obamacare lie.