The Gruber Chronicles

No doubt, you’ve heard a bit about the Jonathan Gruber videos emerging this week. Gruber came to light earlier this year for videos in which he argued that the supposed “scribal error” in Obamacare was intentional — i.e, that states that do not build exchanges shouldn’t get Obamacare subsidies. These new videos show him slagging the American voter, boasting about how they deceived the public on aspects of Obamacare and basically acting like an arrogant twerp.

There’s been a small wellspring of sympathy for him, since he’s now caught up in an unexpected controversy. Personally, I find it difficult to find a lot of sympathy for a man who was paid $400,000 to help deceitfully foist Obamacare on us, but whatever.

I don’t think Gruber’s comments, however angering they are, are going to make much difference. Obamacare passed and has survived at least one SCOTUS challenge. His comments on the subsidies are a good talking point on Halbig but SCOTUS is going to base their decision on Congressional intent, not the post-facto comments of some MIT windbag. No matter how involved he was in writing Obamacare, it is the intent of the legislators that matters.

But there is one aspect of the Gruber videos that is important. It proves that not only were critics of the law right, but that the Administration knew they were right and lied and obfuscated about the law. It’s not a “scandal” in the sense that anyone broke the law. But it’s a scandal in what it reveals about Obama, the Democrats and the so-called fact-checkers.

Take the CBO scoring. One of the big selling points of Obamacare, from day one, was that it would decrease the federal deficit. Critics pointed out that it only did this because of gimmicks — the taxes penalties fines taxes phased in a little faster than the subsidies. Critics pointed out that it depended on unlikely money-saving events, such as not enacting a “doc fix” (said doc fix having been promised to the AMA in return for their support of the bill). Critics pointed out that while it was technically balanced over the ten years, by year ten, Obamacare was running a deficit, a deficit that would only increase over the years. Critics also pointed out that CBO analysis, if you dug deep, made exactly these points. While they were required by law to score it the way they did, they noted, numerous times, the flaws in their projection.

When we pointed this out, we were called liars and tools of the insurance industry. Fact-checkers rated this claim as false. Of course, time has born out our complaints. But what the video shows is that the Administration was well aware of their deceit — how could they not be? This wasn’t a quirk; this was an act of deliberate deception. And they were laughing about it all the way back to their comfy positions in academia and industry.

Another big point is the so-called “cadillac tax”, which enacts a fee on healthcare plans that cost more than a certain amount (at least, for some people). When this plan was rolled out, critics pointed out that it was indexed to inflation, not healthcare costs. This would mean that, over time, more and more plans would qualify as “cadillac plans”. The result would be to effectively eliminate the tax deduction for health insurance.

Now one can make the case that the tax deduction is bad law. But that’s not the case the Obama Administration made because they knew eliminating the tax deduction for health insurance would be extremely unpopular and likely scuttle the entire bill. So they came up with a convoluted and tangled way of doing it. And when critics pointed this out, they were called liars and tools of the insurance industry (the insurance industry having written much of Obamacare).

Now that everyone is admitting to what Obamacare does, the President’s supporters are … blaming the stupidity of the voters for making these lies necessary. We’re being told this is standard operating procedure in Washington (it isn’t), that everyone does it (they don’t) and that the critics are being hypocrites (for … um, being right all along?)

We see this over and over again with this Administration. Here is my own attempt a one-act play that encapsulated the last six years:

Obama: My law does X.

Critics: The law also does Y and Z and it doesn’t do X very well.

Obama Supporters: Tea Partiers! Extremists! How dare you come here with your astroturf talking points!

“Fact Checkers”: Obama says the law does X. We rate your claim as false.

[Three years pass]

“Fact Checkers”: Actually, the law also does Y and Z and does’t do X very well.

Critics: We told you!

Obama Supporters: Shut up! Y and Z are great policies! Obama had to lie about it because you’re so fucking stupid!

The gripping hand here is that this will not make any difference. Most of the vast American public could give two shits about Jonathan Gruber. This will not have any impact on the Halbig case or any other legal challenges nor will it play a role in any attempts to fix or repeal Obamacare. It will persuade few to repeal the bill who don’t already want to. It’s mostly Washington insider stuff. I find myself agreeing with Tyler Cowen: let’s put all this energy into explaining why these policies are so bad rather than whether Gruber is an arrogant prick or the devil incarnate.

Gruber is nothing. Obamacare is everything. We can do something about the latter. And now we can use the Administrations own words to help make it happen.

Hoist By Their Own Petard

Let’s remember, for just a moment, how Obamacare was passed. It was cobbled together by a team of industry insiders to cater to all the special interests. It was then sent to Congress, where it would be honed and passed. But when Scott Brown won the election in Massachusetts, they suddenly did not have a filibuster-proof majority. So they rushed it through on a budget reconciliation. As a result, the bill contains a lot of bad language, poor wording and unclear statutes. Nancy Pelosi famously said we had to pass it find out what was in it. And now we’re finding out that what’s in it could destroy it.

Earlier this week, the DC Circuit Court ruled that the Obamacare subsidies could not be given to people whose states had not set up insurance exchanges because the law did not specify it. Liberals screamed blue murder about activist courts and people losing insurance and other arguments from the “Oh Come On!” school of jurisprudence. They said that Michael Cannon and Cato and other people arguing that the subsidies were meant to be withheld to force states to set up exchanges were “sociopaths” who would say anything to take insurance away from the poor. They’re livid that Obamacare might be overturned by what they’re calling “a typo”:

his week, Jonathan Gruber appeared on MSNBC to assert that the DC Circuit appellate court got the ObamaCare statute all wrong in its Halbig decision. Gruber, one of the key architects of the ACA and of the Massachusetts “RomneyCare” law that preceded it, insisted that the state exchange requirement for subsidy payment was purely accidental. “It is unambiguous this is a typo,” Gruber told Chris Matthews. “Literally every single person involved in the crafting of this law has said that it`s a typo, that they had no intention of excluding the federal states.”

Even if that were true, these kind of typos are what you get when you shove a law through without reconciliation. And while “everyone” might agree that Congress intended the mandates to be universal, it’s difficult to tell what Congress intended because Congress barely debated the fucking thing.

But is it true that Congress intended the subsidies to be universal? For that, we should ask one of the architects of Obamacare such as … um … Jonathan Gruber?

Two years ago, though, Gruber gave a much different explanation for this part of the ObamaCare statute. Speaking at a January 2012 symposium for a tech organization that this was no typo. It was, Gruber said, a deliberate policy to twist the arms of reluctant states to set up their own exchanges — and that a failure to do so would mean no subsidies for their citizens.

You can go to Hot Air and watch the video, including the full video that shows this was not taken out of context. Gruber has since said his words were a “speak-o” and he was mistaken. If so, this Obamacare architect — who was paid a cool $400,000 for his contribution — now appears to have made that “speak-o” multiple times.

As Ed Morrissey points out, this doesn’t really matter for the court case. The Court will be considering Congressional intent not consultant intent. And to be perfectly frank, Gruber is a hack who will say whatever the Obama Administration wants him to say. If he got a memo saying that Obamacare was actually French Toast, he’d be handing out eggs and butter at these meetings.

But it does make for some great entertainment to watch these guys flounder around trying to explain what the bill really means.

Dueling Obamacare Decisions

Obamacare is dead!

This morning the U.S. Court of Appeals for the D.C. Circuit released its much awaited opinion in Halbig v. Burwell. In a 2-1 opinion, the Court held that the Internal Revenue Service regulation authorizing tax credits in federal exchanges was invalid. Judge Griffith, writing for the court, concluded, “the ACA unambiguously restricts the section 36B subsidy to insurance purchased on Exchanges ‘established by the State.”

Oh, wait. It’s merely pining for the fjords:

Within hours, a unanimous three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., issued a ruling that came to the opposite conclusion.

The Fourth Circuit panel upheld the subsidies, saying the I.R.S. rule was “a permissible exercise of the agency’s discretion.”

The language of the Affordable Care Act on this point is “ambiguous and subject to multiple interpretations,” the Fourth Circuit panel said, so it gave deference to the tax agency.

What the what?

These two rulings concern a very specific piece of wording in Obamacare. The law calls for the states to set up Obamacare exchanges. It then specifies that subsidies will be made available to people who enroll through the state exchanges. It then sets up a Federal exchange for people whose states do not set up an exchange. The plaintiffs in this case argue that because it does not specifically mention subsidies for the Federal exchange, those subsidies are illegal. The government’s case is that the wording indicates that the Federal exchanges will be the equivalent of the state ones and that the subsidies are legal. These debates over verbiage tend to happen when you pass a law hastily and through a budget procedure because Ted Kennedy died.

If the subsidies disappear, individuals who have insurance through the federal exchange — about five million of them — will suddenly be paying the full price of their insurance. It is likely that many of them will choose to pay the Obamacare penalty instead. Only sick people will stay in the individual insurance market because even unsubsidized insurance is cheaper than no insurance if you’re sick. This is precisely the “death spiral” that many have feared.

Of course, it’s unknown how the states will react if the DC Circuit’s decision is upheld. It’s possible that there will be considerable pressure on some to set up exchanges so that their citizens can get the same subsidies citizens in 14 other states are getting. It’s also possible further lawsuits will follow alleging that the citizens of the 36 unsubsidized states are being treated unequally under the law.

Given that two courts have issued opposite ruling, I expect the Supreme Court to take this up. And, gun to my head, I expect it to side with Obama.

Doug Mataconis argues that the ambiguous wording and precedent may cause the Court to rule against Obama. However, I have to disagree. The Roberts Court has a track record of deferring to lawmakers when their decisions are not blatantly unconstitutional (which makes it all the more shocking that Obama has suffered a dozen unanimous defeats in the last two years). They have taken the paeans against activist judges to heart and have explicitly said that laws should be repealed through legislatures, not through courts. I can’t see them, given the decision they made two years ago on the mandate, throwing out one of the most massive sets of laws in American history because of a disagreement over literally a single word.

Still, we’ll see what happens when this moves up.

Video Monday: Takei and Hobby Lobby

I bookmarked these two video over the weekend. The first is a TED talk from George Takei. While I’m not fond of TED talks — they often cross me as smug and overly confident in their points — this one explains why George Takei still loves the country that interred him during the war:

(I’ve found this embed tends to hang. If someone has a better link, I’ll update the post.)

This comes close to my view of America. The United States, like all human institutions, is flawed and capable of doing awful things. But the principles on which our nation is founded are a beacon to humanity. And I would take the achievements of America, its role in the world and its history over any other nation on Earth. Takei’s story sounds familiar to me — and probably to many of you as well. Both of my paternal grandparents fled the “Jewish crescent” of Eastern Europe in the early 20th century. Despite the virulent anti-semitism they encountered — they vividly remembered the Leo Frank lynching — they still believed there was nowhere else in the world they would rather be.

The second I couldn’t resist. Takei is calling for a boycott of Hobby after the Supreme Court’s narrow decision last week. This completely useless gesture would accomplish little except making liberals feel better (how many liberals actually go to Hobby Lobby?) Reason, by contrast, proposes some changes to the law that would actually do some good:

The amazing thing about Obamacare is that many liberals believed — many still believe — that Obama “stood up” to the special interests and the healthcare industry. This could not be more false. He “stood up” to the insurance industry by forcing everyone to buy their product, outlawing the cheaper versions of their product and refusing to break the intra-state cartels. He “stood up” to healthcare providers by mandating coverage of expensive procedures and not even considering obvious cost-reducing measure like making birth control available over the counter.

All three of Reasons’s suggestions would be diametrically opposed by the healthcare industry lobbyists who wrote and campaigned for Obamacare. Insurance companies don’t want to offer cheap catastrophic plans. They certainly don’t want to compete across state lines. And providers don’t want more competition And so we can expect the liberal wing to “stand up for the little guy” by continuing to acquiesce to every demand of the industry they supposedly hate.

Shifting the Numbers

We’ve gotten used to the numbers game this Administration plays with Obamacare. It was going to ensure thirty million. No twenty million. No ten million. We have seven million signed up! Well, they haven’t all paid. And five million previously had insurance. And insurance rates are going down! Well, they’re actually going up. And the number of uninsured is the lowest in five years! Well, that just brings us back to pre-recession levels — a level that meant people were dying in the streets when Bush was President but means progress now that Obama is.

Still, even with all that, this is pretty blatant:

The Census Bureau, the authoritative source of health insurance data for more than three decades, is changing its annual survey so thoroughly that it will be difficult to measure the effects of President Obama’s health care law in the next report, due this fall, census officials said.

The changes are intended to improve the accuracy of the survey, being conducted this month in interviews with tens of thousands of households around the country. But the new questions are so different that the findings will not be comparable, the officials said.

An internal Census Bureau document said that the new questionnaire included a “total revision to health insurance questions” and, in a test last year, produced lower estimates of the uninsured. Thus, officials said, it will be difficult to say how much of any change is attributable to the Affordable Care Act and how much to the use of a new survey instrument.

The Census Bureau estimates this will reduce the number of estimated uninsured by two percentage points — from 12.5% to 10.6%. That’s basically six million people — which is about two-thirds of what Obamacare is supposed to accomplish. In other words, a real decline in the uninsured of 9 million could look like 15 million or even more simply because the changes in the way the Census does things.

To be fair, these changes have been needed for a while and are driven by technical experts at the Census Bureau, not the Administration. Conservatives have long complained that the methodology overestimates the number of uninsured. But to quote Megan McArdle, it doesn’t matter if these changes are coming from elves at the north pole. It would be well within the President’s authority to delay the changes so we can get a clear read on the effects of PPACA.

Do you think any liberal pundits will take note of this? A few years ago, both the NCVS and FBI changed their methodology when calculating rape statistics. This didn’t stop feminists from jumping on the “shocking rise” in rape rates.

If the Obama Administration were confident in their program, they wouldn’t be tinkering with the definition of uninsured. If they were even curious about how well their program was working, they’d delay this. What does it tell you that they’re happy to let the waters get muddied like this?