There is a big problem with the prevailing liberal narrative that the phrase describing subsidy eligibility in Obamacare, “established by the state,” could not possibly mean what it says. The problem is named Jonathan Gruber.
For years Gruber understood Obamacare precisely the same way the challengers in King v. Burwell do.
When the bill passed in March 2010, Gruber said: “There’s a lot of responsibilities on the states to set up these exchanges, like we did in Massachusetts, to regulate them and run them.”
By October 2011, Gruber was starting to get concerned that states would be a problem: “The most certain threat is states not working hard enough to implement this bill...literally setting up a functioning exchange.”
By January 10, 2012, he was playing hardball. “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?”
Gruber was even more emphatic eight days later, when he said: “If you’re a state and you don’t set up an exchange that means your citizens don’t get their tax credits... 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.”
On March 1, 2013, months into Obama’s second term, Gruber still believed states could undermine Obamacare through inaction. He said: “The last group is the one that’s the most worrisome to me. They’re the states that are those stick-it-to-the-man Conservative states that are trying to make political hay out of doing nothing.”
When the Obama administration, the IRS, and their allies decided to hold hands and act indignant that anyone might think the words “established by the state” actually mean what they say, Jonathan Gruber became a profound problem. So they rewrote the history of the bill to demote Gruber from its celebrated chief architect to just some guy.
Gruber got with the program after his contempt for the “stupidity of the American voter” became infamous, even going up to Congress to downplay his involvement in a bill about which he told his MIT students he helped write.
“I was not the ‘architect’ of President Obama’s health care plan. I ran microsimulation models,” he told Congress in sworn testimony on December 9, 2014.
But newly released documents show that he did far more than just run the models. Indeed, the quote he provided for his $392,000 no-bid contract expressly stated that he was hired to do more that run the numbers: “I will provide both policy consulting and microsimulation modeling...I will play two, integrated, roles.”
Clint Druk, the official who approved Gruber’s contract, noted it was “of key political importance” because “there is appreciable pressure to get him working immediately.” Druk designated the no-bid “unusual or compelling” to “get the health reform proposals going.”
When Congress investigated the contract in 2010 - because Gruber was caught representing himself as an independent expert while under contract with HHS - colleague Patrick Joy told Druk he was “lucky the Dems are in charge across the board, may stop some scrutiny.”
The contract documents are part of a FOIA first reported by Chuck Ross at the Daily Caller, which also includes hundreds of pages of heavily-redacted email conversations between Gruber and the key White House Obamacare team. It is clear that he played a central role developing the policy and legislative language, not just running the numbers.
So Jonathan Gruber is a very big problem for those who, like President Obama, posture that King v. Burwell “should be an easy case. Frankly, it probably shouldn’t even have been taken up.”
One of Obamacare’s key creators had no trouble understanding what “established by the state” meant until the Obama administration decided to overrule the states. Now liberals want to pretend he doesn’t exist. I wonder why?
Mr. Kerpen is the president of American Commitment and the author of “Democracy Denied.” Kerpen can be reached at phil@americancommitment.org