This week, an unprecedented circuit split emerged in Halbig v. Burwell and King v. Burwell over whether health insurance premium assistance is available in states that didn’t set up health insurance exchanges. Many commentators have since claimed that there’s no way Congress intended to deny premium assistance to residents of the 36 so-called “refusenik” states that have not set up their own health insurance exchanges.
But in January 2012, Jonathan Gruber—an MIT economics professor whom the The New York Times has called “Mr. Mandate” for his pivotal role in helping the Obama administration and Congress draft the Affordable Care Act—told an audience at Noblis that:
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. But, you know, once again the politics can get ugly around this.
Start the video at 31:25. For more on Professor Gruber’s crucial role in designing the ACA, see this 2012 profile of him in The New York Times and this release from MIT’s press office, which describes Gruber as the architect of the “three-legged stool” concept discussed at length by the Fourth Circuit opinion in King v. Burwell.
CEI coordinated and funded both Halbig and King, as discussed previously on these pages.
Props to Volokh Conspiracy commenter Rich Weinstein for bringing this video to my attention.