You are here

OpenMarket: CEI Litigation

  • Update: Where in the World is Jonathan Gruber?

    October 14, 2014 6:20 PM

    Today the plaintiffs in King v. Burwell filed the last brief regarding the cert petition now before the Supreme Court. It effectively rebuts each of the government’s arguments against Supreme Court review. 

    For starters, there’s some interesting history about the government’s switch in its tactics on timing. When Obamacare was first being litigated several years ago and the government lost in the Eleventh Circuit, it quickly sought Supreme Court review even though there were no imminent deadlines facing it regarding Obamacare taking effect.  Now, on the other hand, we have, in the words of the reply brief, “billions of taxpayer dollars … pouring out of the Treasury without congressional authorization and millions of Americans … ordering their lives around an impugned regulation.” And instead of  supporting a quick Supreme Court review of King, the government instead asks the Supreme Court to hold off until the D.C. Circuit completes its en banc reconsideration of Halbig—a reconsideration that the government itself requested.

    And while the reply brief’s starting point is what the government did, its conclusion succinctly describes what the government did not do. It did not mention Jonathan Gruber at all. Gruber, “the ACA architect whose work it cited in every brief below … is nowhere mentioned now.”

    That fittingly leads us back to the title of our earlier post: Where in the World is Jonathan Gruber? (Or, for you more plain-spoken Waldo fans, Find Gruber!) 

  • Where in the World is Jonathan Gruber?

    October 9, 2014 8:18 AM

    The Obamacare insurance exchange rule is being challenged in four cases, and each one of them has been active over the last two weeks. The IRS rule puts the Obamacare insurance subsidies, and their attendant penalties, into effect nationwide. CEI is involved in two of these casesKing v. Burwell, which we lost in the Fourth Circuit, and Halbig v. Burwell, which we won in a 2-1 D.C. Circuit panel ruling. We argue that this is contrary to the underlying statute, which provides for such subsidies only in states that have chosen to set up their own exchanges—a choice that 34 states have declined.

    The King plaintiffs have petitioned the Supreme Court to review the Fourth Circuit’s ruling, which upheld the IRS rule. Last Friday the federal government filed its opposition to that request. Its arguments were relatively predictable, with one exception that we’ll get to later. 

    In the D.C. Circuit, Halbig is now on en banc review, with argument before the full 13-judge court scheduled for December 17. Our opening en banc brief, together with six supporting amici, was also filed last Friday.

    Last Tuesday, September 30, there was a third court ruling—Oklahoma won its own challenge to the IRS rule in the Eastern District of Oklahoma. That court did an excellent critique of the dissent in Halbig, and it was also noteworthy for issuing the first “post-Gruber” ruling—that is, the first court decision to consider the recently-unearthed 2012 video that showed MIT Professor Jonathan Gruber, one of Obamacare’s chief architects, directly contradicting his current attack on our position. The video shows him flatly stating that nonparticipating states would not receive subsidies, in stunning contrast to the more recent claims, by Gruber and others, that our legal position is “crazy.” (CEI, by the way, is proud to have helped launch that video into Internet stardom just two days after the Halbig and King decisions.)

  • Federal Obamacare Officials Once Recognized the Falsity of Their Current Argument about Tax Credits

    September 10, 2014 2:17 PM

    ​The Obama administration has claimed that despite recurring language in the Obamacare law limiting tax credits to people who buy insurance on an “exchange established by the state,” such taxpayer subsidies are also available to people who buy insurance on the federal exchange, Healthcare.gov.  (The availability of tax credits triggers employer mandates and penalties in any state where the tax credits are available, and the tax credits contain work disincentives and marriage penalties, so the tax credits are not a free lunch.)

    Architects of Obamacare like Jonathan Gruber have argued that it is “nutty” to argue that Congress intended to limit tax credits to state exchanges. But this supposedly “nutty” view was once the view of Gruber himself – and, apparently, the federal government itself. When the Department of Health & Human Services issued a contract to create a federal exchange in 2011, the contract assumed tax credits didn’t apply to the federal exchange. (The original contract did not include any functions to allow purchasers to calculate their tax credits, or factor in tax credits before displaying health-insurance prices, and the contract was not amended to apply tax credits to the federal exchange until much, much later.)

    Back in 2012, Gruber had himself admitted tax credits were not available on the federal exchange, contradicting his later statements. A 2012 video caught “Obamacare architect Jonathan Gruber saying, ‘If you're a state and you don't set up an exchange, that means your citizens don't get their tax credits.’” In July 2013, that video was “nationally-publicized due to the efforts of CEI’s Ryan Radia,” who helped expose Gruber’s two-faced turnabout. (“The Wall Street Journal, Bloomberg, Forbes, New Republic, Slate and others carried stories” due to Radia, noted the Des Moines Register.)

    Gruber claimed that what he earlier said on the video was just a slip-of-the-tongue—a “speak-o” equivalent to a typo—but it turned out that he publicly made the same exact admission on at least one other occasion in 2012, before that admission became politically inconvenient.

    As Forbes Magazine noted, “the irony is that” by 2013, “Gruber was deriding as ‘nutty’ and ‘stupid’ the contention that the Affordable Care Act required subsidies to flow through state-based exchange,” the very contention he himself made back in 2012. “It’s a ‘screwy interpretation’ of Obamacare, alleged Gruber in an interview with Erika Eichelberger of Mother Jones . . . ‘It’s nutty. It’s stupid… it’s essentially unprecedented in our democracy.’” Less than a week before his video was unearthed, “Gruber was on MSNBC’s Hardball,” where he proclaimed the “criminality” of those who argue tax credits are limited state-based exchanges.

    But as Scot Vorse discovered, the government itself once recognized that credits are limited to state-based exchanges. In light of that discovery, CEI has submitted two FOIA requests, one to HHS headquarters, and one to the Centers for Medicaid & Medicare Services, seeking additional information relevant to the government’s about-face.

  • Court Ruling Imminent in Challenge to Illegal Obamacare Exchange Subsidies

    July 9, 2014 3:05 PM

    According to the explicit language in the Affordable Care Act, tax credits for purchasing federally-regulated health insurance on the “Obamacare” exchanges are only supposed to be available "through an Exchange established by the State." Since 34 states have not set up an Obamacare exchange (leaving their residents to use the federal Obamacare exchange instead), it seems obvious that the credits are legally not available in those states.

    But the IRS decided to dole out the tax credits in those states anyway, allowing 87 percent of Healthcare.gov customers to receive taxpayer subsidies to purchase health insurance, by arguing the federally-created exchange can somehow be “an Exchange established by the State.”  Don’t laugh; two liberal trial court judges bought the argument in cases like Halbig v. Sebelius, which is now on appeal to the U.S. Court of Appeals for the D.C. Circuit, and King v. Sebelius, which is on appeal to the Fourth Circuit. Decisions by those appeals courts are expected any day now.

Subscribe to OpenMarket: CEI Litigation