By Phil Kerpen
The language in the Obamacare statute has always been crystal clear. Eligibility for the “affordability tax credit,” or subsidy, under 36B specifically requires enrollment “through an Exchange established by the State under 1311 of the Patient Protection and Affordable Care Act.” Identical language appears in the definition of a “coverage month” later in 36B, and every, single place subsidy eligibility is mentioned in the law.
States would, drafters of the law assumed, just have to go along and create state exchanges to get the money. It never occurred to liberals that some states would consider stopping the massive flow of taxpayer-funded subsidies (and the employer taxes, 30-hour workweek, and associated penalties that come with them) a good thing. No, every state would jump at the chance to get all that federal money.
Well, almost every state. Eleven Texas Democrats were pretty sure their state would turn down the cash and warned: “In Texas, we know from experience that the dangers to the uninsured from greater State authority…millions of people will be left no better off than before Congress acted.”
The Congressional Research Service (CRS) wrote in April 2010, right after the law passed, that subsidy eligibility required “residing in a state that established an exchange,” but simply assumed: “Under PPACA, state-established ‘American Health Benefit Exchanges’ will have to be established in every state by January 1, 2014.”
There was a perfunctory federal fallback exchange written into the law, but without subsidies it would find few customers. Moreover, Congress hadn’t appropriated a penny for the federal exchange because they assumed it would never actually be created.
But something funny happened on the way to those 50 state exchanges.
The American people rose up against Obamacare in one of the biggest landslide elections in history – President Obama’s historic 2010 shellacking. They wanted the law repealed, of course, but obstinate Senate Democrats refused to consider even modest changes. Most states, however, were in no mood to cooperate. Indeed 36 of them ultimately declined to establish exchanges.
But rather than accept the verdict of the American people, the Obama administration turned to the IRS to come to Obamacare’s unlawful rescue. I say unlawful advisedly, because the CRS had issued a legal opinion on the matter: “An IRS interpretation that extended tax credits to those enrolled in federally facilitated exchanges would be contrary to clear congressional intent, receive no Chevron deference, and likely be deemed invalid.”
Yet the IRS, in a May 23, 2012 regulation, did extend subsidies and had the nerve to say: “The statutory language of section 36B and other provisions of the Affordable Care Act support the interpretation that credits are available to taxpayers who obtain coverage through a State Exchange, regional Exchange, subsidiary Exchange, and the Federally-facilitated Exchange.”
That was it. Unexplained. Ignore what the law says because we say so.
Some states still didn’t believe it. At least four – Oklahoma, Alabama, New Hampshire, and Indiana – cited the illegality of the IRS rule as a reason not to establish an exchange. They didn’t want the subsidies the law’s proponents thought all 50 states would be eager to have.
With lawsuits challenging the illegal rule moving through the courts, the Obamacare proponents who had broken their own law to override the lawful right of states to opt out had a problem. They were wrong on the facts and wrong on the law, so they pounded the table. Hard.
Foremost among them was Jonathan Gruber, the MIT economist who was paid $400,000 of your tax money to write the Obamacare subsidy provisions and to promote the law – usually without disclosing his conflict of interest. “I know more about this law than any other economist,” Gruber told the New York Times.
He was relentless in attacking the personal integrity of the honest men and women who put together the legal challenges to the IRS rule. He told the ultraliberal Mother Jones magazine in January 2013 that limiting subsidies to state exchanges was a “screwy interpretation.” of the law. “It’s nutty. It’s stupid,” he said, pounding that table hard. “They’re desperate.”
Well, somebody was.
Gruber filed an amicus brief arguing nobody could ever possibly have understood the law to mean what it says:
“In Appellants’ conception, the ‘stick’ of having to ‘explain to their voters that they had deprived them of billions of dollars by failing to establish an Exchange’ would so frighten state officials that eventually, every state would create an Exchange and, consequently, uninsured Americans nationwide would become eligible for premium subsidies. That account – for which Appellants provide no evidentiary support – is implausible and indeed irreconcilable with the ACA’s structure and purpose.”
And this week, when one court had the temerity to say the law actually is what it plainly says, Gruber was apoplectic. “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,” he said on MSNBC.
And now we know it was all a lie. An elaborate ruse. Another fraud piled on top of all the other Obamacare lies and frauds. Gruber understood exactly what the law said and meant from the beginning. When he was writing it. And now there’s video proof.
“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,” Gruber said in an accurate, straightforward explanation of what the law actually says. “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 then, perhaps hedging that politics might trump the law, he added: “But, you know, once again the politics can get ugly around this.”
Shameful. Willful. Disgusting. And it’s likely that many of Gruber’s fellow travelers also knew they were lying when they launched hateful attacks on great Americans like Michael Cannon, Jonathan Adler, and Jacqueline Halbig who simply wanted the law – including the right of states to opt out of subsidies – upheld.
Most amazingly, even after Gruber was caught he kept on lying. He told the liberal New Republic it was some weird inadvertant mistake, that “statement was just a speak-o—you know, like a typo.”
But he said the same thing even more emphatically in a second tape posted on YouTube by John Sexton of Breitbart News:
Jonathan Gruber, speaking January 10, 2012 at the Jewish Community Center of San Francisco:
“Then finally the third risk and the one folks aren’t talking about, which may be most important of all, is the role of the states.
“Through a political compromise, the decision was made that states should play a critical role in running these health insurance exchanges. And the health insurance exchanges are the centerpiece of this reform, because they’re the place that individuals can go to shop for their new securely priced health insurance.
“But if they’re not set up in a way which is transparent, and which is convenient for shoppers, and which allow people to take their tax credits and use them effectively to buy health insurance, it will undercut the whole purpose of the bill. Now a number of states have expressed no interest in doing so.
“A number of states, like California has been a real leader. One of, I think it was the first state to pass its exchange bill. It’s been a leader in setting up its exchange; it’s a great example. But California’s rare. Only about 10 states have really moved forward aggressively in setting up their exchanges.
“A number of states have even turned down millions of dollars of federal government grants, as a statement, of some sort, that they don’t support health care reform.
“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 a 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, is 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, is will states do what they need to set it up.”
Surely not another “speak-o.”
Of course, the lying Obamacare apologists of the left will keep lying, and somehow try to explain away Gruber’s pants-down tapes. But no honest person should listen to them.