Jonathan Gruber on federal exchanges and subsidies
Several commenters pointed to a statement made by Jonathan Gruber in 2012. (Gruber is a well know academic who helped advise Congress on the ACA, and who supports it.)
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.
That seems to suggest he agrees with the recent court ruling. But he actually disagrees with the ruling. Indeed he seems to regard the ruling as ludicrous. That doesn’t look good. Until you realize that the quote was taken out of context, and that the comments immediately preceding the quote tells a very different story:
Yes, so these health insurance exchanges . . . will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law it says if the states don’t provide them the federal backstop will. The federal government has been sort of slow in putting up its backstop in part because I think they want to sort of squeeze the states to do it.
That seems to imply the federal backstops would provide health subsidies. So how can we reconcile these two statements? I believe Gruber was trying to say that the federal government was being slow in setting up the exchanges, because until they did so, those states without state exchanges would get no subsidy. Once the federal exchanges were set up, they would all get the subsidy.
What I don’t understand is why commenters were providing me with the quote on top, but not the second quote, which provides important context.
BTW, which of the following two statements represents the conservative view on the role of the courts?
A. The courts should interpret the laws passed by the duly elected members of Congress, and should not be substituting their own views. Original intent is what matters. Unelected judges should not set policy.
B. Yay!! the courts have just gutted the ACA, which was an awful law passed by Congress.
I used to think it was A; now I wonder if it is B.
PS. I totally disagree with Gruber on health care policy.
Update: After I wrote this I came across Gruber’s explanation:
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 …
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.
I didn’t assume every state would set up its own exchanges but I assumed that subsidies would be available in every state.
The 2nd paragraph in Gruber’s comments is what I assumed he meant. Just to be clear, there is no question that the top paragraph I quoted above (which is what the controversy is about) implies what the conservatives claim it implies. He misspoke, no doubt about that. But I’m interested in what Gruber thought, and the paragraph I emphasized makes more sense if you interpret it the way Gruber and I did. Otherwise that paragraph is quite misleading relative to what comes after.
In sum, a nice debating point for conservatives, but if the Court had asked every single senator who voted for the ACA what he or she “intended” they probably would have all agreed with me.
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25. July 2014 at 06:57
Maybe it’s just some good-old-fashioned pronoun-antecedent confusion, but I’m not sure the second quotation is that connected to the first.
It seems to me that when he refers to the “federal backstop” in the second quotation, he’s talking about the federal exchanges, themselves. I read it as (second quotation) “If the states don’t set up exchanges, the feds will,” but (first quotation) “The subsidies only go to those states that set up their own exchanges, so it’s unlikely the feds will have to.”
Maybe I’m just reading it wrong/falling prey to my own priors/etc…, but I think this is more about conflating the subsidies with the exchanges when Gruber uses the word “backstop” than it is about anyone being taken out of context.
25. July 2014 at 06:59
Arnold Kling’s motto:
“taking the most charitable view of those who disagree”
The post above is an excellent example of that. And Prof. Sumner does that day in and day out!
25. July 2014 at 07:04
I might be missing something, I don’t think it guts the ACA.
There will be blue states with, red states without, and some red states with.
Gruber was right, it’s definitely a $ transfer from red to blue states IF we have a balanced budget.
Blue and red states that use Federal system, can just have a copy of the code (if they frigging want it).
MOREOVER,
Given Obama’s love of Executive action, suddenly the all states have the opportunity to NEGOTIATE on the Essential Health Benefits!
We could end up with some seriously KICK ASS Econ data.
We can actually get to the bottom of who is right – that’s really helpful.
5 cons on SCOTUS ought to cheer the shit out of this!
Conspiracy: John Roberts is a political genius.
25. July 2014 at 07:26
1) That interpretation requires you to assume that Gruber meant that foot-dragging or no, the feds wouldn’t have their exchanges up in time for the start of PPACA, and that some state residents therefore wouldn’t have access to exchanges at all for some period of time. I seriously doubt that he believed that.
2) FWIW, Gruber’s position is that his sentence was a “speak-o”, that it was wrong when he said it, but that he can’t recall why he said it.
3) “What I don’t understand is why commenters were providing me with the quote on top, but not the second quote, which provides important context.”
I’ll take the charitable view that you actually don’t understand and are not coyly trying to imply bias. It was because I don’t have access to video, so I copied and pasted the portion that was available in text. That’s why I started with the qualified “if true,” because I hadn’t done the homework but thought it was interesting.
25. July 2014 at 07:27
Scott,
You are giving that a rather too fanciful interpretation. The fact that he mentioned that federal exchanges would step in only *hurts* his case. If he understood the scheme to be that subsidies would be provided if the feds stepped in, there wouldn’t be any loss of tax credits to state residents (and there would be no “pressure” on states to set up those exchanges). But, of course, Gruber’s views one way or the other are irrelevant to the legal issue.
As far as a “conservative” or “liberal” view on the role of courts, there shouldn’t be any in this case. Rules of statutory construction are amazingly neutral, when applied consistently.
25. July 2014 at 07:44
Vivian – I disagree slightly with your last point. IMHO, on average and when there’s no specific outcome at stake, conservatives tend to favor rule-based policies, even if they result in negative outcomes in some cases. Libs tend to favor case-based policies, even if they vest indivual government officials with untrammelled discrection. (Cf. sentencing guidelines).
25. July 2014 at 07:47
The problem with judging intent is, who’s intent? There were 280 people who changed this bill into a law (219 house + 60 senate + 1 president). Should we have interviewed each of them (ex ante, of course) to find out? Members may even have different interpretations of the law; do we average that out somehow?
In my view it’s really irrelevant what Gruber’s or anybody else’s intent was at the time because the bill was voted on as it was written. If people don’t like how it was written, follow the traditional process of amending the law.
Of course, throw into the mix that the whole process was so rushed as to preclude any reading of the bill… the reasonable response there is “you made your bed, lie in it!”. The left’s alternative is to retroactively fix the mistake with the courts, but COME ON, whatever your political views you must agree this is NOT a firm foundation for a legal system!
25. July 2014 at 07:52
J Mann,
That’s a debate that’s not worth getting in to. First, it is and should be irrelevant to any discussion of a legal issue. Second, I really wouldn’t know where to begin to define “conservative” and “liberal” in order to make those sort of divisions meaningful, so the whole thing is pretty silly. I do feel strongly though that there is a growing tendency for those outside the court (politicians and the media of whatever persuasion) to try to influence the court through public opinion rather than through the established legal process.
25. July 2014 at 08:01
J mann, Sorry if I implied dishonesty, I was just being cute.
Vivian, Even Gruber admits it was poorly worded, so I’m not trying to defend the comment. But the part about the feds being slow as a way of “squeezing” states to do more, suggests that by deny federal benefits states would be more likely to set up exchanges. But if the federal exchanges had no benefits, where is the incentive effect he alludes to?
Again, I’m not denying that part of his statement was misleading, there’s no getting around that fact. But at the time I thought the federal exchanges would provide subsidies, and my impression was that everyone else thought that too. The CBO certainly did. This new view just seems to have come out of nowhere, which makes me think it was a typo in the original bill.
BTW, I have frequently committed “speak-o” when speaking to groups. I’ll say something and then realize I don’t really believe that. Sometimes a person’s tongue works faster than their mind, and Gruber talks really fast.
jj, The bill is ambiguous.
25. July 2014 at 08:09
It’s not an issue of what conservatives and liberals believe about the role of the courts.
In our legal system, both conservatives and liberals are trained that a lawyer’s job is to be a zealous and effective advocate. They are trained to make the strongest legal arguments reasonably possible for their client’s position and against their opponent’s position.
Almost all American judges were first trained as lawyers. Rarely are they able to leave this training behind. Once judges decide what their judgment will be they tend to to make the strongest legal arguments reasonably possible for their judgment and against any dissenting judgment.
When people who are not lawyers make legal arguments they adopt the same sort of zealous-advocate rhetorical tactics that the lawyers and judges use. (By the way, lawyers and judges have traditionally been high status professions–people who want signal high status when involved in legal topics areas will tend to act like them.)
Of course there are exceptions to these general tendencies, but the American legal culture, and its adversarial system, expects that the truth will emerge when two sides of a disagreement each do their best to show the best sides of their arguments and the worst sides of their opponents arguments.
Specifically, in legal advocacy it is expected that each side will select and frame quotes in the way that most supports their position. It is also expected that it is the job of the opponent to do their best to provide context and explanation that will undercut the apparent meaning of the quotes. In America, it’s unrealistic to expect a legal advocate to provide context that undercuts the quotes they’ve found in support of their position.
Liberals tend to want change more than conservatives so they are often in situations where they less likely to look back at original intent, precedent, etc. However, it’s liberals will quickly adopt these “conservative” legal tools when they suit their interests of “locking in” liberal policy gains.
Sometimes legal arguments are most effective with “liberal” rhetoric and sometimes with “conservative”. For example, compare the legal rhetoric used by “liberals” in looking to the courts to original establish, or “liberalize”, abortion rights and the legal rhetoric about the courts used by them now to defend, or “conserve”, these rights as they’ve become part of the status quo.
PS Even law professors and many politicians started out as law students being trained to be zealous advocates.
PPS Political tribe members tend to also to highlight only evidence that supports their tribe’s positions.
25. July 2014 at 08:20
Hmm. So you are saying that in Gruber’s speech, he is saying that the federal government’s plan is to simply ignore the part of law that calls for Federal marketplaces? Gruber says, “In the law it says if the states don’t provide them the federal backstop will.” So, what you hear him saying in the next section, matter of factly, is that the subsidies would be unavailable in those states only because the federal government intended to not follow its own law?
Think about that, Scott. He would be saying that the law called for a federal marketplace to be a backstop to provide subsidies. So, imagine that a state didn’t provide a marketplace, and the federal government then refused to follow the law and provide a marketplace and subsidies. How would it be a threat to the states to withhold the subsidies? The states would simply respond, “But the law said that the federal government was our backstop for the subsidies. How is it our fault that they are refusing to follow the law?” Your interpretation just doesn’t make sense. The only way that the political threat in the second part of his statement makes sense is if the federal backstop doesn’t include subsidies.
I will literally pay a trillion dollars to anyone who finds video of Scott from yesterday that strongly suggests that he realizes the Gruber video speaks to the intent of the law, but that hinges on a vague use of the word “them” in an introductory sentence. I don’t intend to have to pay the trillion, because at that moment, the internet will implode on itself.
25. July 2014 at 08:29
Scott, you’ve done a far better job at defending Gruber than the supporters of ACA. You actually provide context to support your argument – everyone else just seems to say “he obviously didn’t mean it”
You’ve convinced me that the bill is ambiguous, though I’m still ambivalent as to whether the courts should have a role.
25. July 2014 at 08:31
” But the part about the feds being slow as a way of “squeezing” states to do more, suggests that by deny federal benefits states would be more likely to set up exchanges. But if the federal exchanges had no benefits, where is the incentive effect he alludes to?”
Sorry, Scott, but I have a hard time following your train of thought here. The “incentive effect” is that if those signing up on federal exchanges can buy insurance but not qualify for subsidies, voters in states that are backstopped by the federal exchange will revolt against their politicians. Gruber states the case clearly and succinctly: those folks would be paying taxes but getting no subsidies. I don’t think any reasonable person listening to this could imagine that he “mis-spoke”. It’s the same effect as not signing up for expanded Medicaid: “no free money”. If you want to give Gruber the benefit of the doubt (rather implausibly, but ok) then the question is indeed: If subsidies were available on a federal exchange, why should states bother? In that case, there is no financial “dis-incentive” to their citizens and taxpayers.
I think your emphasis on the feds being “slow” as a way out for Gruber is a pretty big stretch. That is because of his clear and unequivocal statement immediately following that about citizens of states getting no subsidies but being stuck with taxes. That doesn’t fit well with an interpretation that this lapse would only be “temporary”. Also, how could a guy like Gruber, who apparently believes in the efficiency with which the federal government can carry out this program, even contemplate they wouldn’t have things in place when folks actually started paying premiums in 2014? It doesn’t make sense at all to me.
I’m not up for making excuses for Gruber, but I guess one theory was that even in early 2012 he was in on the scheme. That is, he intentionally misrepresented the situation in 2012 so as to make states *think* they would lose out (permanently) only to do the regulatory switch later. I don’t know which would be worse—either interpretation strikes me as unsavory.
I left another link to today’s WSJ op-ed by Kim Strassel on the IRS involvement which is highly interesting in the whole scheme of things here. Gruber’s stance is irrelevant even though it fits into the bigger picture. What went on between HHS and the IRS might be more relevant on appeal, I think, if those appealing Harbig claim that the administrative “interpretation” should carry weight. Regardless of its relevance to any legal appeal, I believe it is relevant to how our government is functioning.
25. July 2014 at 08:35
It’s amazing how many people on the right have, in the last few weeks, developed such a strong conviction that the clear and undeniable intent of the federal exchanges was to screw over citizens in states whose legislatures were too stubborn to create state exchanges. That they created the federal exchanges as an alternative to the state exchanges, but that federal exchange alternative was designed to be as shitty as possible. (I mean, really! Why even bother with the federal exchange in that case?) We have to believe that the entire Democratic establishment and especially the 100s of people involved in writing and passing the bill have managed to change their minds 100% on what they wanted the bill to accomplish and that they managed this coordinated effort without any public discussion of the matter. As soon as this case started being discussed in public every commentator on the left was unambiguous that this was not the intended effect except for a single, not definitive, consultant on youtube from 2 years ago who has since clarified his views.
One of the things you have to grapple with is the Chevron principle here. You have to establish that the Halbig interpretation is the only plausible interpretation of the bill. Otherwise, the executive agency has priority over the court in deciding how to interpret the bill and of course there is precedent that they can ignore even a fairly clear textual instruction if it leads to a result that is nonsensical or does not fit the purpose of the bill. The IRS has already determined their interpretation. You have to demonstrate that it’s not plausible. And your case is resting on one youtube video from a random consultant. Simply amazing.
25. July 2014 at 08:41
Could be intellectual dishonesty, but I think most of your commenters probably didn’t have the second part of the quotation. I first saw the quote at Marginal Revolution, which got the quote from this Peter Suderman article in Reason. Suderman is the source for other places I’ve seen it as well.
http://reason.com/blog/2014/07/24/watch-obamacare-architect-jonathan-grube
Suderman doesn’t include the other part of the quotation, despite having updated the post at least twice. I’m sure if you asked him, he’d say, “well, I included the video.” Yeah.
25. July 2014 at 08:44
The vast majority of citizens aren’t familiar with the intricacies of when a federal agency’s interpretation of a law should get deference. Instead, they shoot from the hip whenever they discuss a pending lawsuit.
I see the conservative reaction to DC Court’s ruling as they believe it’s the correct interpretation of a badly written law. Remember, this is a law that members of Congress refused to read, and that Pelosi said the best way to find out what was in it was to pass it.
I live in Carson City, Nevada. When we first moved here, I met a lawyer who works for the state legislature to draft laws. The people who draft federal laws aren’t amateurs.
25. July 2014 at 08:55
Scott’s interpretation is right on. A federal delay puts no pressure whatsoever on the states unless the intent was to provide subsidies through the Federal exchange. People are rewriting history to think otherwise.
25. July 2014 at 09:20
‘B. Yay!! the courts have just gutted the ACA, which was an awful law passed by Congress.’
Nope. It’s the opposite, as Michael Cannon has been saying for some time, even in congressional testimony;
http://www.cato.org/publications/testimony/presidents-duty-execute-faithfully-patient-protection-affordable-care-act
———quote———-
Since he signed the Patient Protection and Affordable Care Act (PPACA) into law on March 23, 2010, President Barack Obama has failed to execute that law faithfully.
The president has unilaterally taken taxpayer dollars made available by the PPACA and diverted them from their congressionally authorized purposes toward purposes for which no Congress has ever appropriated funds.
He has unilaterally and repeatedly rewritten the statute to dispense taxpayer dollars that no federal law authorizes him to spend and that the PPACA expressly forbids him to spend.
He has unilaterally issued blanket waivers to requirements that the PPACA does not authorize him to waive.
At the same time he has declined to collect taxes the PPACA orders him to collect, he has unilaterally rewritten the statute to impose billions of dollars in taxes that the PPACA expressly forbids him to impose, and to incur billions of dollars in debt that the statute expressly forbids him to incur.
He has unilaterally rewritten the PPACA to allow health insurance products that the statute expressly forbids. He has encouraged consumers, insurers, and state officials to violate a federal law he enacted.
And he has taken these steps for the purpose of forestalling democratic action by the people’s elected representatives in Congress.
President Obama’s unfaithfulness to the PPACA is so wanton, it is no longer accurate to say the Patient Protection and Affordable Care Act is “the law of the land.”
———-endquote——–
25. July 2014 at 09:24
Let me restate my above comment more succinctly.
For your interpretation to make sense, Gruber would have to be confidently asserting that:
1) The law promises that if the states choose not to create a marketplace, the feds will do it, with subsidies.
2) If the states choose not to make their own marketplaces, and the feds purposely don’t create the backstop marketplaces that the law calls for, then the state governments will have a political problem because citizens without subsidies will blame their state governments.
Regardless of how one feels about all the other facts of the case, this is not a tenable defense of the video.
25. July 2014 at 09:26
I am amused by how you ever thought that the conservative opinion was A. When it comes to the judiciary, pretty much everyone always chooses B whenever they have any stake on a judicial decision. It just happens that when A and B align, we’ll always say we believe in A.
The closest thing you’ll ever find to believing in A is someone who is in agreement with almost every law of the land, so that for them, B really is equal to A.
It is no different when it comes to government deficits. People care about them when it’d mean cutting programs they don’t like, and ignore them when it’s about expanding programs they like. A pity that people can’t quite agree on which programs they like and which ones they dislike.
25. July 2014 at 09:51
Keep in mind this statement was from 2012, and the IRS had already issued the ruling saying the federal exchanges would receive subsidies in 2011. The timeline doesn’t hold up, unless he was mistaken or misspoke in the video.
25. July 2014 at 09:58
A second Gruber speak-o has turned up. I haven’t checked the context.
http://reason.com/blog/2014/07/25/obamacare-architect-jonathan-gruber-says
25. July 2014 at 10:08
“Sweden’s school choice disaster? Nope”
http://www.aei-ideas.org/2014/07/about-that-article-on-school-vouchers-in-sweden
25. July 2014 at 10:14
Chris, If true, that’s very sad. Judges are not supposed to be advocates.
Kevin, He specifically said the feds would be slow in setting up the exchanges in order to “squeeze” (i.e. pressure) the states. That may be factually wrong, but it appears to be what he was thinking. He certainly doesn’t think the benefits just applied to state run exchanges.
Ask him if you don’t believe me. I’ll bet a trillion dollars he agrees with me–the subsidies apply to federal exchanges as well.
Thanks Chris.
Vivian, You said:
“I don’t think any reasonable person listening to this could imagine that he “mis-spoke”.”
Of course they could!! I misspeak like that frequently when I speak to the public. Just queue up one of my videos, you’ll see me say a few things I don’t believe, by accident. In any case, if you were right, why would the feds delay setting up the exchanges to squeeze the states. They could squeeze them with the exchanges set up, but not subsidizing.
In any case the update I added shows that Gruber agrees with me. Sorry, but I put 100 times more weight on what Gruber said he meant back in 2012 as compared to what someone else thinks he meant. He’s in the best position to know what he meant. He’s obviously embarrassed now. I hardly believe he’d intentionally say something in 2012 that would lead to him being deeply embarrassed today.
mpowell, The thing I find amazing is that we all assumed people would get subsidies from the federal exchanges back in 2010. This new view seems to have just come out of the blue. But the whole ACA issue was widely debated in 2010, if this really was the intent, there would have been massive debate about that in 2010. I don’t recall any discussion.
Patrick, I’m certainly not going to defend Obama against charges of overstepping his powers. I agree with you there.
25. July 2014 at 10:15
Arnold Kling at his blog:
“Woodford’s conclusion is very anti-Sumnerian when it comes to monetary offset.”
25. July 2014 at 10:16
J Mann, how many smoking guns do we need? It seems clear to me that Gruber was confident that the loss of subsidies was a big enough stick to get states in line. He never expected so many states would not respond to the threat. Typo, my ass.
I’m not sure if this was just Gruber or if it reflects broader strategic thinking of Democrats.
Disclosure- I’m not hostile to ACA.
25. July 2014 at 10:26
Scott,
You claim the bill is ambiguous. Could you please quote the text of the bill you find to be ambiguous, together with a gloss illustrating the claimed ambiguity? It appears to me that the plain language of the bill overwhelmingly supports the DC Circuit’s interpretation.
25. July 2014 at 10:38
As J Mann has provided the link;
https://www.youtube.com/watch?v=LbMmWhfZyEI
I’d like to see Scott talk away that more explicit statement by Gruber too.
25. July 2014 at 10:45
It sounds like a Krugman dodge, but presumably the answer is that Gruber doesn’t specifically recall why he would have said that, but hypothesizes that maybe he was imagining that the feds wouldn’t have their exchanges up by 2014, leaving some states unable to collect “hundreds of millions of dollars” in subsidies during the time between 1/1/14 and whenever the federal exchange policies came on line.
25. July 2014 at 11:19
How about Congress passing new legislation to resolve the ambiguity? Oh, that’s not possible since Congress is now divided on the fundamental question of Obamacare.
Seems to me the best approach would have been to have given Obamacare a 5-year time limit. If, after 5-years the law was not renewed it would expire. Clearly, given what we know now the law would expire. If that happened I suppose a minority in Congress would complain. But the will of the majority would be preserved and who can be upset at that?
25. July 2014 at 11:50
Explain it to me again. How does a court gut the ACA by insisting that the text of the ACA as written is, in fact, the law?
If the ACA is a mess, blame Nancy and Harry, not SCOTUS. The courts’ job is not to save the sorry asses of Congressmen who didn’t know how to draft a law.
Enforcing the law as written is neither liberal nor conservative; it is just what courts are for.
25. July 2014 at 12:16
Scott,
Perhaps you want to weigh in on that second Gruber “mis-statement” of the state/federal exchange subsidy issue? And, “hundreds of millions” or “billions” of dollars in missed subsidies doesn’t sound like a temporary delay to me. So, funny that. He managed to consistently “mis-state” the same thing on two separate occasions. How do you explain that?
Gruber agrees with you? Or, you agree with Gruber?
The whole Gruber thing is a farce. Luckily for PPACA proponents, it’s irrelevant to the political issue. But, I hope you can recognize from this example why courts ignore self-serving after-the-fact statements as part of legislative history to prove original iegislative intent. They just can’t be trusted.
25. July 2014 at 12:18
I meant to write that it is irrelevant to the legal issue. But, hey, it’s easy to get confused when Gruber is clearly involved in politics here, not the law.
25. July 2014 at 12:30
if the Court had asked every single senator who voted for the ACA what he or she “intended” they probably would have all agreed with me.
But isn’t that the point of the vote? To figure out what every single senator intends? I doubt whether very many legislators understand much of the laws that they are passing. Then they leave it to regulators and courts to figure out how to actually implement things (and therefore run the government).
I remember when Medicare Pt D came out and I was a consultant for employers to help them build health plans. They all wanted help figuring out how the new law would impact their postretirement medical plans. Although we could give general guidance based on the actual law passed, we couldn’t actually do anything until at least the first draft of the regs were released. When lawyers make laws about any area requiring technical expertise (health insurance, macroeconomics, etc) they seem to just write nonsense, and it is up to area experts in the executive branch to actually make a system that works. I can’t say I particularly like that state of affairs, but that seems to be the situation we are in now.
I thought your earlier post about how this question should really be a minor technical question that almost nobody should care about was well put. I can’t seem to find it now, but I remember there was an old talking head who used to say that all debates about procedure are disingenuous.
25. July 2014 at 13:25
C’mon, boys and girls, let’s get past our personal preferences and run thru the hypo:
IF SCOTUS reads the law the way Halbig asserts…. that would mean Roberts switches his vote.
Vivian / Scott (others too),
IF Roberts switches his vote, is there any chance he could have REALIZED there was a future loophole that would allow him to switch and suddenly ACA is far more of a States’ Rights, almost block grant approach to caring for the uninsured?
25. July 2014 at 13:27
Nick, I think for Congressmen, it’s far more “we have to pass it to see whats in it”
BUT for Roberts!
He’s a legal genius….
25. July 2014 at 14:46
Anyone that thinks Gruber is clearly lying doesn’t have to communicate ideas for a living. It is incredibly difficult to get the stuff that goes on in your head out to another person in a coherent manner. You don’t even have to rely on him having a cognitive bias to offer a charitable view of those statements.
25. July 2014 at 15:10
Vivian, I’m happy I don’t have to defend Gruber as an cogent speaker.
And I’m happy I don’t have to accuse Gruber of being a lying sleazeball. (The implication of many comments over here.)
So I can sleep at night.
In the 1800s people fought duels over less serious charges.
I wonder how many people in anonymous comment sections would have the guts to call Gruber a liar to his face right now if they met him at a cocktail party.
Chris S. Finally a voice of reason. Unfortunately the Krugman view (all the people who disagree with me are fools or knaves) tends to be all too common. You need to give people the benefit of the doubt. I’d like to see much stronger evidence that Gruber is a liar before making that charge. But I guess other people think they have enough.
BTW, if anyone went over my life with a fine tooth comb they’d probably conclude I’m a liar.
25. July 2014 at 17:05
Scott, I’d call Gruber a liar in front of his wedding attendees at his church.
This isn’t guts. (altho I totally discount anonymous posters vs. peeps who use their name, everyone should) I think he wouldn’t have the guts to say what he is saying in a quiet room of his peers.
To be guts, it would probably have to be someone I knew and respected (fear might be required too)
Do you know Gruber? Are you 1 degree from him somehow? Really asking.
—–
To be a liar… he doesn’t have to be wiling to lie if confronted with evidence his logic meant he couldn’t say what he said.
Thats far to much of a litmus test.
He’s a liar if he doesn’t say: “Since I said it, and at the time I believed it, you shouldn’t trust me to make policy.”
This is the knowledge problem. This is Nassim Taleb’s bullshitter. Since you aren’t as sure as you pretend, you must humble yourself and only ask your policy plan be deployed locally, where you personally have skin in game – or you are a liar
This is why i say that Paul Ryan’s block grant system needs to let states do free money without a work requirement, NO MATTER how sure he is it should be national policy.
Mistakes are always made. If your policy is global or national where it could be local: you are a liar.
GUTS is trusting your idea to TAKE OVER THE WORLD one host at a time.
25. July 2014 at 18:09
Scott,
A couple of things…
1) Read Adler and Canon’s original paper on this issue. There is a reasonable counter-argument with respect to legislative intent. I.e. the provision being adjudicated was intended as a carrot to get States to create exchanges.
2) The court will ignore any statements of intent made after enactment or by non-enactors (e.g. Gruber).
3) Since many of the enactors did not even bother to read or understand the legislation, it would seem problematic to ascertain their intent on a matter to which they had not given any consideration.
4) For the court to buy the “legislative intent” argument, they would need to be convinced not of the general intent of the legislative body, but the specific intent of every legislator voting for the act.
5) It is not the role of the court to fix bad legislation.
6) If the court does not buy the intent argument, there is no chance the defendants can win on the arbitrary language argument…the plaintext of the act is exceedingly clear.
7) Similarly, the argument that the legislation makes no sense without credits being available on the federal exchange is a poor one. Regardless of intent, the idea of using federal subsidies to encourage state action (i.e. set up exchanges) is by no means bizarre or unusual.
8) Further to point 7), normally one would have expected (as perhaps the drafters of the legislation did) that the scale of the subsidies would subject state legislators to such strong political pressure that they would be forced to establish state exchanges.
9) If you actually watch the Gruber video (which of course won’t be relevant to court adjudication…but might shape the political debate), it seems not unreasonable to assume he was making an argument not about timing as you suggest but rather the argument noted in 8)…i.e. the subsidies available on State exchanges were intended as carrot. (The fact that even Gruber is not arguing your timing interpretation but is relying instead on the brain-fart excuse is telling.)
10) Now that many State legislatures have put the perceived interest of the overall nation ahead of pecuniary subsidies to their individual constituents, the view that Gruber and other authors of the legislation are now scrambling to construct an entirely different tale with respect to their intent in drafting the legislation is not at all unbelievable
The authors of Constitution and the Senate Rules intended to put in place a series of checks and balances to insure the safe operation of the democratic process. The Congressional Democrats while enacting major social legislation that did not enjoy a broad consensus, tried to circumvent this intent and in so doing rushed through defective legislation. If the Supreme Court upholds the Halbig ruling, karma and good democracy will be the winners.
25. July 2014 at 18:35
So, was he also speak-o-ing in the second vid, where he says the same thing more explicitly?
I think Scott is trying too hard to be fair. He’s overcorrecting.
25. July 2014 at 19:34
http://www.youtube.com/watch?feature=player_embedded&v=LbMmWhfZyEI
Scott, you’ll need to recant now.
The man is god damn liar. I’m not saying he doesn’t believe what he says now v.s then, I’m saying he should see the videos, and find his only truth is letting his conception of the perfect PROVE itself. His brain should trust him, but it won’t.
This is interesting to me, as an online discussion guy since 1980, from BBS to The Well, Electric Minds, Hotwired Threads, and now where centralized comments are the standard…
Yesterday I mentioned some stuff about how brains rewire neural networks (during first 3-4 REM cycles each night) to deal with cognitive dissonance – whatever people struggle with most today, tonight their brain will do what it needs to do to get rid of that kluge.
As online discussion forums go, I think there’s a very interesting concept around memetics and the hive mind here:
Scott’s brain attracts a certain kind of like minded thinkers. Via self-selection, creating our own shorthand, a common framework, we impact Scott’s brain more than most other people bc he has an emotional investment in us and we in him.
And when a large group of you own self-segregated community disagree with you forcefully, I think it creates a far greater level of mental struggle. It doesn’t happen often, but it’s very interesting.
This is why I also try to see a bit past when politicians change their beliefs. They struggle, and their brain ALTERS them. They don’t make a simple political calculation.
It’s also why i think anyone with any humility at all must be a Federalist.
When you are a startup guy, you have an idea, this thing that you think about 18 hours a day, it invades your sleep, you start to dream in code, logic, UX – its your precious.
But the ego of the free marketer is always that his idea is so great that just birth it will be enough, it will take over and crush everything else in its wake.
MM is like this.
Obamacare as currently construed is not. Obama gave up the goat when he said letting states make decisions about what they covered as essential services would be a race to the bottom.
Anti-federalist ideas don’t believe the idea can work unless there is no choice.
And Scott, hopefully while you sleep tonight, your brain will rewires itself. Gruber’s ideas should have to fight for their life, on their own merits, just like MM. And you shouldn’t make your brain struggle watching you be filled with cognitive dissonance 🙂
25. July 2014 at 22:01
A couple of thoughts:
1. Conservatives have long argued that the “clear intent” of ObamaCare was to establish single payer. Therefore, I believe Roberts should ignore all the wordy legally mumbo jumbo and strike down employer health insurance. (sarcasm)
2. Gruber was the guy who screwed up ObamaCare. Gruber said about RomneyCare “the program is far too generous from a fiscal guardian standpoint.” Gruber is the reason we have subsidy cliffs, massive marriage penalties, and all sorts of mandates and taxes that have subsequently been waived. ( http://thepolitic.org/healthcare-economics-an-interview-with-jonathan-gruber/ )
3. This case is very very dangerous for Republicans. If everyone loses their subsidies, who will they blame? Obama will ask for a legislative fix, and Republicans will say “No”????
4. Republicans should focus on the real criminality here; Obama’s refusal to enforce mandates and taxes in the law, but only if those provisions disproportionately hurt his constituents.
26. July 2014 at 00:11
“Vivian, I’m happy I don’t have to defend Gruber as an cogent speaker.
And I’m happy I don’t have to accuse Gruber of being a lying sleazeball. (The implication of many comments over here.)
So I can sleep at night.”
Scott, I hope you had a good night’s sleep. I certainly did.
Since the above quote was addressed to me, I’ve only got to assume you were insinuating that I insinuated Gruber was a “lying sleazeball” (gotta give you credit, though, for use of colorful hyperbole for rhetorical effect and for attacking insinuation with insinuation) and that I should be losing sleep over that. I surely expressed great skepticism and even credulity that the statements of Gruber and his subsequent explanations were plausibly consistent, but frankly, I think my comments on that were just as diplomatic (if not more so) than the one you made above regarding me (and many un-named other commenters here, but I guess that’s your idea of being “gutsy”).
The thing about building a factual case with argument as to what those facts likely mean is indeed a form of “insinuation”: here, other folks are free to judge for themselves whether Gruber is a “liar” or not (I’ll leave the more colorful aspects out). In this respect, I think my treatment of Gruber (as well as many others here) was on more prepared ground than the comment you just made about us.
Apropos, calling some one a “liar” and not giving them the benefit of the doubt, I distinctly recall, quite recently, in this comment section, you accusing Ralph Musgrove of “lying” about your position on a particular issue (this was not even left to insinuation). Now, I guess Ralph may very well have been wrong, perhaps he mis-undersood your positions, or perhaps he just had a “speak-o” or a “typo”, but this makes me think that your occasional expressions of moral self-righteousness are self-serving and a little bit too selective at times. They don’t add one iota Scott to the strength of your arguments “on the merits”. (And, don’t get more wrong, Scott, “I’m not defending Ralph”). But, we seem to be having a double standard here where Gruber’s statements are still chocked up to “not being a cogent speaker” even at this stage.
No hard feelings Scott. Everyone needs a bit of sleep at times. Rest well, my friend.
26. July 2014 at 06:07
Whose intent matters? The strongest supporter or the marginal vote that ultimately passed the law?
Of course the courts don’t look at it that way – so it’s an irrelevant question. The point being the system, as it currently stands, allows too many laws to be made outside of the democratic process.
26. July 2014 at 07:32
Morgan, You’d call the Pope or the Queen of England a liar. I have no doubt about your willingness to speak out.
dtoh, You said;
“6) If the court does not buy the intent argument, there is no chance the defendants can win on the arbitrary language argument…the plaintext of the act is exceedingly clear.”
No, it’s actually not at all clear. There are parts that imply the federal exchanges would provide subsidies. Other parts imply it would not. How can that be clear?
Vivian, Maybe I shouldn’t have called Ralph a liar. But the cases are not identical. Gruber did not personally insult you.
And I had a horrible nights sleep, but that’s because I’m running a high fever.
26. July 2014 at 08:06
I wouldn’t call Bernie Madoff a crook to his face if I met him at a cocktail party. Does it follow that Bernie Madoff isn’t a crook?
26. July 2014 at 09:57
And I’m happy I don’t have to accuse Gruber of being a lying sleazeball. (The implication of many comments over here.)
I resent that! Since when does lying make one a ‘sleazeball’? What implies that?
How many times have I told my wife, “Honey, I never did or said any such thing, ever, and if I did it doesn’t mean what it seems, it couldn’t possibly, you know that!”
Does that make me a ‘sleazeball’?
Here’s a simple but effective test I learned in my youth as a kid lawyer, or maybe doing journalism (I’m not sure, my youth was a long time ago)…
A statement made by a person should be given no weight in determining the truth except to the extent you can credibly imagine the person saying something else to the contrary. (Hmmm … maybe it was my wife who taught me this.)
Can anyone imagine Gruber standing up and saying: “Of course what I actually said back then is true. Our intent was to deny tax credits to persons in states that didn’t create exchanges, to politically force them to do so. That’s the way I understood it, at least, and I was one of its creators. But then it didn’t work out that way, so we suddenly had to improvise, and the law is such an ill-drafted mess we’ve been able to…”
Considering Gruber’s political desires regarding the law, who his friends and allies are whom he depends upon, what his professional career depends upon, can anybody at all imagine him saying any such thing? Even if it is true?
Or in reality is it simply not possible for him to say the above, or anything but: “Gee, looking back I spoke poorly, over and over — but it doesn’t mean what it seems, it couldn’t possibly, you know that!”
Well, I for one can’t imagine Gruber saying anything but what he is actually saying — and since a person in his position must say it, can’t say anything else, regardless of what the truth is, I give it a truth-determining weight of zero, and ignore it (except for its schadenfreude political-entertainment value.)
His denials mean nothing, because there is nothing else he can say. That does not mean his is lying, he could be telling the truth. But as he must say what he is saying regardless of what the truth is his words have no value in helping determine the truth either way.
And if he is lying he has very good reason, which makes him no more of a sleazeball than I am. And I am not a sleazeball!
26. July 2014 at 10:18
Vivian, Maybe I shouldn’t have called Ralph a liar. But the cases are not identical. Gruber did not personally insult you.
The cases are very different indeed — and if they are both lying then Gruber’s lie is much worse. Ralph merely insulted one person, “sticks & stones”. Gruber’s lie would be an attempt to affect the status of millions of people by changing the entire national health care system thru what he knows are extra-legal, lying means.
(Which still wouldn’t make him a ‘sleazeball’, IMHO, just effectively a politician. Well, not a ‘lying sleazeball’, but a ‘political sleazeball’.)
26. July 2014 at 10:24
Scott,
You’re right (as always). I had no right to feel personally insulted by what Jonathan Gruber said, no matter how many times he said it irrespective of whether what he said then is the same thing he said now. Therefore, since he didn’t insult *me personally* I had no right to even suggest that, well, there is a likelihood, no a strong likelihood, that what he said and then later said and then later said he didn’t say, all this despite the fact that I didn’t insinuate he was a lying sleazeball (spell check goes off on that one for some reason).
I guess what Jonathan Gruber did, and continues to do, is to insult the entire country. That makes it all ok. So, thanks Scott. I see the error of my ways. I take it all back. Sorry Jonathan. Mea culpa, mea culpa, mea maximum culpa. Forgive me Jonathan, for I have sinned. Gosh, I feel better already. Time to take that nap.
26. July 2014 at 10:27
And, to top it off, that damn spell-checker apparently doesn’t know latin and changed maxima to maximum.
26. July 2014 at 10:49
Chris S,
Nonsense. There is no ambiguity in Gruber’s 2012 comments- no doubt about what he was trying to say, no suggestion that this was just one interpretation of the statute or that his interpretation was in any way novel.
This is not a minor technical issue. At the time, it was a stick and Griuber was swinging it recklessly. And it didn’t work. Typo? I’m not an idiot.
Scott, I use my own name. And I’m not ACA-hostile. And I’d jump at the opportunity to call Gruber a liar to his face.
26. July 2014 at 11:52
Personally, I’d say BOTH the drafting AND the intent of the law are ambiguous. It’s even ambiguous whether anyone at all read the law, which makes intent hard to ascribe.
What is perfectly clear however, is that the ACA proponents including Gruber were living in an unbelievable bubble. They thought the law would be popular and a huge winner for democrats.
This expectation for popularity persisted despite evidence that Obamacare would be a budget buster. Gruber said RomneyCare was “far too generous from a fiscal guardian standpoint” and pushed to make ObamaCare worse vis-a-vis RomneyCare in almost every way, at least for the people who were going to be asked to pay full freight.
Yet somehow these geniuses didn’t think that making health care worse for the payers would create political opposition. They thought it would create a permanent Democratic super majority!
26. July 2014 at 12:22
There are parts that imply the federal exchanges would provide subsidies. Other parts imply it would not. How can that be clear?
No, there are parts of the law that state directly that federal exchanges will not receive subsidies, and others that imply they will. Meanwhile, the authors of the bill were famously so unsure of their own intent that we had to “pass the bill to find out what’s in it.” Not exactly channeling Madison and Jefferson there.
In any case, the issue with Gruber isn’t so much what he said in 2012 as that in 2014 Gruber described the things Gruber said in 2012 as “nuts.” That suggests he’s either honest but so delusional he really can’t tell the difference between “nuts” and something he might have repeatedly said in public statements a couple years ago, or that he’s utterly mendacious.
27. July 2014 at 12:45
Jim, You said;
“Can anyone imagine Gruber standing up and saying: “Of course what I actually said back then is true. Our intent was to deny tax credits to persons in states that didn’t create exchanges, to politically force them to do so. That’s the way I understood it, at least, and I was one of its creators. But then it didn’t work out that way, so we suddenly had to improvise, and the law is such an ill-drafted mess we’ve been able to…””
If that is the truth (which I very much doubt) then yes, he should say that.
Talldave, You said;
“No, there are parts of the law that state directly that federal exchanges will not receive subsidies,”
I don’t agree.
27. July 2014 at 12:46
Vivian, I think you missed my point, if you are confident that he’s a liar feel free to say so.