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.