By: David Bastawrous—Special Report College Associate
On November 5th, in their first press conferences following the midterms, reporters swarmed President Obama and newly elected Senate Majority Leader Mitch McConnell with many of the same questions—how will the GOP wave alter Washington’s actions on the issues?
Each gave similar answers. They would work to find common ground, with priority given to defeating ISIS and containing Ebola. Dealing with Obamacare would inevitably come, but later.
‘Later’ lasted about 2 days.
On November 7th, the US Supreme Court announced it would take up King vs. Burwell and decide the legality of health insurance subsidies given to those enrolled through the federal Exchange under the Affordable Care Act.
The legal dispute arises from the letter of the law that gives the IRS authority to grant subsidies to those enrolled through an “Exchange established by the State.”
To date, only 14 states plus D.C. have established their own state Exchanges, while the rest of the nation’s enrollees receive subsidies through the federal healthcare.gov Exchange.
On July 22, 2014, two similar cases in Federal Appeals courts gave opposite rulings. In Halbig vs. Burwell, the court ruled that the IRS does not have the power to grant subsidies through the federal Exchange according to the health care law. But in King vs. Burwell, the court ruled in favor of the IRS.
The King vs. Burwell Appeals court sided with the government on the grounds of “ambiguous language” in the law, defending the administrative deference taken by the IRS in granting subsidies to those enrolled through the federal Exchange as well as state Exchanges.
However, the court opinion also states that they “cannot ignore the common-sense appeal of the plaintiffs’ argument; a literal reading of the statute undoubtedly accords more closely with [the plaintiffs’] position.”
The US Supreme Court will hear King vs. Burwell in March 2015, with a decision expected by June 2015.
Should the lawsuit succeed, about 4.6 million people who enrolled through the federal Exchange would be deemed ineligible for federal subsidies—which covers, on average, about 76% of the plans’ premiums.
Premiums across all states would be expected to rise by an average of about 422%. Ron Pollack of Families USA (a liberal health policy and Obamacare advocacy group) called the legal argument “the most serious existential threat” to the fate of the Affordable Care Act.
And one man who had previously made the plaintiffs’ case? Jonathan Gruber—an Obamacare architect, MIT professor, and a nearly $400,000 paid Department of Health and Human Services consultant.
In July, a video surfaced of Gruber speaking on a January 18th, 2012 forum stating, “… 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’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at state here in setting up these Exchanges.”
Shortly after, Gruber told Jonathan Cohn of the New Republic, “I honestly don’t remember why I said that. I was speaking off the cuff. It was just a mistake.”
However, that wasn’t the only time Gruber “mistakenly” spoke of the need to establish state Exchanges in order to get federal subsidies. Soon after, Breitbart uncovered another video of Gruber speaking at a different forum 8 days earlier, making the same points.
More recently, Gruber was caught up in yet another scandal.
Footage from a 2013 Obamacare forum at the University of Pennsylvania showed Gruber saying, “lack of transparency is a huge political advantage. And basically, call it the stupidity of the American voter or whatever, but basically that was really, really, critical for the thing to pass.”
And while the US Supreme Court in 2012 upheld the individual mandate on the grounds that the repercussion for not doing so was actually a “tax,” not a “penalty,” Gruber indicated that the law was purposely written in a “tortured way,” saying, “If the CBO scored the [individual mandate] as a tax, the bill dies.”
Though he told MSNBC’s Ronan Farrow that he regretted the remarks and that he, again, was “speaking off the cuff,” at least 2 other videos have since been uncovered of Gruber giving similar “off the cuff” remarks.
The Democrats are today playing cleanup.
Rep. Nancy Pelosi today said, “I don’t know who he [Gruber] is. He didn’t help us write the bill . . . let’s put him aside.”
However, the former House Speaker’s website cites Gruber’s Obamacare analysis, and CSPAN today unearthed video of Pelosi publically mentioning Gruber in 2009.
White House Press Secretary Josh Earnest also weighed in, saying, “the process associated with writing, passing, and implementing the ACA has been extraordinarily transparent,” adding, “the fact is I think it is Republicans who haven’t been transparent or particularly honest about the true impact of this.”
For more on Gruber and the political and legal implications of his remarks, tune into Special Report tonight.