If you were perusing the conservative twitter-sphere this morning, you would have witnessed a kind of collective orgasm, as it was discovered that back in 2012, MIT economist Jonathan Gruber gave a talk to a small group in which he seemed to support the analysis of the two judges on the D.C. Circuit who ruled this week in Halbig v. Burwell that the subsidies for buying health insurance under the Affordable Care Act should go only to people who live in states that set up their own insurance exchanges. Since Gruber advised Mitt Romney on the creation of Massachusetts' health reform (which became the model for the ACA) and then advised the White House and Congress during the preparation of the ACA reform, conservatives are now convinced they have their smoking gun: The law, they contend, was always designed to deprive millions of Americans of subsidies, and was in fact never meant to achieve that "universal coverage" that everyone involved said was its goal.
Up to the point where the Supreme Court rules on Halbig, those conservatives will be citing Gruber's 2012 comments. A lot. But the idea that something Gruber said in response to a question in front of what looks to be around 20 people is more relevant than literally everything else that happened during the drafting and debate over this law's passage is, to put it plainly, insane.
Let me provide a partial list of people who spent over a year between the beginning of the debate over health-care reform and the passage of the law talking about the ACA, but never mentioned what was supposedly the intent of Congress that people in states using the federal exchange would be deprived of subsidies:
- Barack Obama
- Kathleen Sebelius
- Harry Reid
- Every other Democratic senator
- Nancy Pelosi
- Every other Democratic House member
- Every health-care analyst in America
- Every health-care reporter in America
- Every Republican in the Senate
- Every Republican in the House
- Every conservative opponent of the law
Ezra Klein, who wrote as much about health-care reform during this period as anyone, tweeted this morning that he interviewed Gruber dozens of times, and not only did Gruber never mention this issue, "[t]he same is true for literally everyone else I interviewed. I never heard a single person say subsidies don't work in federal exchanges."
As for Gruber himself, this morning he spoke to Jonathan Cohn, and here's what he told him:
I honestly don’t remember why I said that. I was speaking off-the-cuff. It was just a mistake. People make mistakes. Congress made a mistake drafting the law and I made a mistake talking about it.
During this era, at this time, the federal government was trying to encourage as many states as possible to set up their exchanges. ...
At this time, there was also substantial uncertainty about whether the federal backstop would be ready on time for 2014. I might have been thinking that if the federal backstop wasn't ready by 2014, and states hadn't set up their own exchange, there was a risk that citizens couldn't get the tax credits right away. ...
But there was never any intention to literally withhold money, to withhold tax credits, from the states that didn’t take that step. That’s clear in the intent of the law and if you talk to anybody who worked on the law. My subsequent statement was just a speak-o—you know, like a typo.
There are few people who worked as closely with Obama administration and Congress as I did, and at no point was it ever even implied that there’d be differential tax credits based on whether the states set up their own exchange. And that was the basis of all the modeling I did, and that was the basis of any sensible analysis of this law that’s been done by any expert, left and right.
I didn’t assume every state would set up its own exchanges but I assumed that subsidies would be available in every state. It was never contemplated by anybody who modeled or worked on this law that availability of subsidies would be conditional of who ran the exchanges.
Cohn, too, says he never spoke to anyone who mentioned this before the Halbig lawsuit. If this was actually what Congress thought the law would do, then liberals would have been freaking out about this provision for years, because it would mean that millions of people wouldn't be able to get coverage. And conservatives would have been crowing about it for years, for the same reason. But nobody on either side was, because it was never part of Congress's intent. It was a mistake, and one contradicted by multiple other provisions in the law.
I have no doubt that when the Halbig case is re-argued before the full D.C. Circuit, either the plaintiffs' attorneys or one of the conservative judges will bring up Gruber's 2012 comments. Let's just hope it gets shot down like the baloney it is.