Obamacare supporters say that when deciding King v. Burwell and the related Halbig v. Burwell, challenges to the law that the Competitive Enterprise Institute helped fund and coordinate, there is really no need for courts to narrowly confine themselves to the language of specific provisions. Instead, they should look at the broad purposes of the law, as explained by its key architects. But one problem with this approach is these architects of the law—both in Congress and outside—seem to have selective memories about the structure of the Patient Protection and Affordable Care Act of 2010, aka Obamacare
Until very recently, one of the key sources that Obamacare supporters have relied on to establish that purpose are statements and writings by the key architects of the law. For example, MIT Professor Jonathan Gruber’s writings on Obamacare were extensively cited by the government, and by supporting amici, in the early briefs in these cases. In fact, Gruber’s “three-legged stool” metaphor for Obamacare was expressly incorporated into a central portion of the dissent in Halbig, which argued that the Obamacare rule should be upheld.
Gruber was an outside expert who has advised Congress, the Department of Health and Human Services, and many states on the law and its implementation (and has been paid handsomely by taxpayers for much of this advice). In July of this year, Gruber told Chris Matthews of MSNBC that interpreting the law as barring federal subsidies in states that didn’t set up their was “crazy.”
Yet a couple days later, my Competitive Enterprise Institute colleague Ryan Radia—with props to Volokh Conspiracy commenter Rich Weinstein—unearthed a clip of Gruber relaying an audience in 2012 what was basically the same “crazy” interpretation. “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.
Gruber responded that this was a “speak-o,” a speaking version of a typo. But since then, many more speak-os of Gruber have surfaced, suggesting that he has a condition that could be called the “Speakola virus.”
First, as revealed by Breitbart.com, there is an audio clip of Gruber making the same speak-o about subsidies and lack of state exchanges to another audience in 2012. Then, there are the recently unearthed scathing comments by Gruber about the “stupidity” of American voters and boasts about how he and other Obamacare architects pulled the proverbial wool over their eyes.
Unfortunately for Obamacare supporters, there is no known cure for Gruber’s Speakola virus, and its treatment is not covered by any major insurance plan, even under Obamacare. So backers of the law are doing their best to quarantine themselves from Gruber’s “speak-os.”
As CEI general counsel Sam Kazman noted recently of the Obama administration’s opposition brief to the Supreme Court taking the King case—a brief that turned out to be unsuccessful as the Court announced last week it would hear King:
What stands out is what the brief did not do. It did not mention Jonathan Gruber at all. Gruber has been cited in every single previous government brief in King, and in the government’s major filings in Halbig. But in this latest document Gruber is gone.
Now the latest quarantine attempt comes from House Minority Leader Nancy Pelosi (D-Calif.), who yesterday told a reporter when asked about Gruber: “I don’t know who he is. He didn’t help write our bill.”
Too late! It turns out Gruber has already infected Pelosi with his Speakola. Dogged National Review reporter Brendan Bordelon has dug up a 2009 video of Pelosi specifically praising Gruber’s analysis of the pending bill that became Obamacare.
While Gruber and Pelosi are taking some deserved hits, the good news is that this virus is having some healthy side effects for American political debate. Namely, the truth. Gruber’s speak-os are gaffes in the classic Michael Kinsley definition of the term. Kinsley, a former writer for The New Republic, defined gaffe as when a politician or policy maker accidentally told the truth
So may the truth continue to spread like a virus and set Americans free from the skyrocketing premiums and deductibles and reduced quality of care injected by Obamacare.