July 26, 2014

The NYT finally gets around to those statements of Jonathan Gruber and White House Press Secretary Josh Earnest cagily refrains from lying about lying.

I've updated my post from yesterday that criticized the NYT for not covering the statements the Obamacare architect Jonathan Gruber had made about the consequences for citizens of states that failed to set up insurance exchanges. These statements were the talk of the internet yesterday because they ruined the spin on the purportedly nonsensical D.C. Circuit opinion in Halbig.
UPDATE: Searching for "Jonathan Gruber" at 9:42 a.m. Saturday morning — about 18 hours after I published this post — I see that the NYT put up an article "13 hours ago," dated  July 25, 2014, the same date as this post. The article, written by Robert Pear and Peter Baker is titled "Ex-Obama Aide’s Statements in 2012 Clash With Health Act Stance." Excerpt:
Mr. Gruber backed away from his comments on Friday. But the remarks embarrassed the White House and could help plaintiffs in court cases challenging the payment of subsidies in 36 states that rely on the federal exchange.

“I made a mistake in some 2012 speeches in describing the tax credits,” Mr. Gruber said in an email on Friday. “It is clear from all my writings and modeling that I did over this same time period that tax credits are assumed to be available in all states. This is the only sensible reading of the Affordable Care Act and is corroborated by every single person who helped craft the law.”...

The White House played down the video on Friday, saying that Mr. Gruber had made clear in friend-of-the-court briefs that he supports the administration’s interpretation.

“His views on this are pretty clear,” said Josh Earnest, the White House press secretary. “I think that he described those remarks as a mistake. But I’d refer you to his explanation for why he said them. I think what is clear is that he, like Congress, intended for every eligible American to have access to tax credits that lower their health care costs, regardless of who is operating their marketplace.”
The inconsistency between what Gruber said in the friend-of-the-court briefs in the current litigation and what he said in 2012 doesn't persuade me that he "made a mistake" back then. In 2012, the effort was to pressure and frighten the politicians in the various states so that they would set up the exchanges. Now, after so many states resisted that pressure, the effort is to preserve the federal exchanges that were set up. At both points in time, Gruber said what served the goals of the program.

What's more likely, that he "made a mistake in some 2012 speeches" or that he's lying now?

The Press Secretary Earnest isn't lying, but if you look closely at each of his remarks, you can see that he seems to know he's making a series of technically true statements that avoid asserting that Gruber is telling the truth now when he calls the 2012 remarks "a mistake." 1. Gruber's "views... are pretty clear." Check. 2. Gruber called his remarks "a mistake." Absolutely true. That's exactly what Gruber said. 3. Gruber's overarching goal has been to get health insurance tax credits to people. Again, Earnest is correct —cagily correct — because lying now about making a mistake back then is exactly what serves that overarching goal, just as saying what he said in 2012 served that goal.

Lying is a means to an end, and one can steadfastly adhere to one's end while changing your statements as needed to serve that end. That's what liars do! To justify their behavior by pointing to their dedication to a single end is only to explain the motivation to lie. Yet that's what Josh Earnest expects us to swallow.

116 comments:

The Crack Emcee said...
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Nonapod said...

Earnest isn't lying, but I think if you look closely at each of his remarks, you can see that he knows he's making a series of technically true statements that avoid asserting that Gruber isn't lying now as he calls the 2012 remarks "a mistake."

The word for that sort of thing is equivocation.

Ann Althouse said...

@Crack You don't seem to understand the scope of the deception and how much is at stake in the litigation.

The administration and the mainstream press are making an extremely important statement about the meaning of the ACA, a statutory interpretation that goes against text of the statute, which requires them to rely on the intent of Congress, and Gruber's statement is highly probative that the intent corresponds to the literal meaning of the statute. It is a devastating piece of evidence.

If you think that's a nonissue you just don't understand it… unless your point is that the life and death of the health care program is a triviality.

Ann Althouse said...

"The word for that sort of thing is equivocation."

No, it isn't. It's outright contradiction. Gruber is trying to disown one of the statements.

Michael K said...

Gruber is only the latest to be discovered. Health Affairs has more. The story is clearly one that the Democrats don;t want to her . HuffPo went suddenly silent yesterday after posts alleging the court was deluded. The problem is this:

The only statement anyone has found in the legislative history that addresses this point comes from the Act’s lead author, who affirmed that Congress did intend to withhold tax credits in federal Exchanges. During a September 23, 2009, mark-up of his bill, which ultimately became the PPACA, Senate Finance Committee chairman Max Baucus (D-MT) refused to consider a Republican amendment regarding medical malpractice on the grounds it fell outside the Committee’s jurisdiction. Sen. John Ensign (R-NV) protested, asking how Baucus’ bill could do other things that lie outside the Committee’s jurisdiction, like direct states to create Exchanges. Baucus responded the bill creates tax credits, which are within its jurisdiction, and makes eligibility for those tax credits conditional on states creating Exchanges. Conditional necessarily means that Baucus intended to withhold tax credits in states that did not create their own Exchanges.

I don't see how Roberts can do anything about this without abandoning the law.

Sebastian said...

"I think what is clear is that he, like Congress, intended for every eligible American to have access to tax credits that lower their health care costs, regardless of who is operating their marketplace."

Earnest may not be lying about Gruber, but this claim is a lie.

As you say, Gruber's earlier statements are "highly probative" and "devastating."


Hagar said...

Gruber is not lying lying.
At the time, he thought the law as written would prevent any state from refusing to open an exchange, thus subsidies would be available in all the states.

The Crack Emcee said...

Ann,

It's a typo. It requires a two-word change.

Making a scandal out of it is silly, wasteful, time-consuming, unpatriotic (because we have real issues to address that get pushed aside for nonsense because whites outnumber everyone else and can push their issues over important ones) and worthless to us as a country.

I dare you to write back, telling me adding two words to the ACA is more important than someone black dying on these streets - for no other reason than whites brought us here to do their work -for another century. It's bullshit.

Change the two damned words and get to the reparations,...

Anonymous said...

A big messy law, crammed through, and bursting at the seams.

Obama spent a lot of political capital to get this thing done, and there are a lot more problems to come.

jdallen said...

It doesn't matter how many times these guys are caught lying. It doesn't matter how big the lie they are caught propagating is. It doesn't matter what lie they are caught telling.

Not enough people are listening, even in Althouse's and all the other blog's comments and Tweets, and Facebooks, and Instagrams. Not enough to change anything except in the most insignificant degree.

Steven said...

@Ann Of course. Discussing laws that manage of one-sixth the US economy is a triviality, but discussing never-going-to-happen reparations are of central importance. The Crack Emcee has spoken!

pm317 said...

Oh my! Althouse is trying to educate the uneducable.

This oversight committee report which was partly the basis of Kim Strassel's article shows that there is no evidence, naturally of any substantive legalistic discussion at either IRS or Treasury about 'misinterpreting' the subsidies statute to suit their needs. If there was skullduggery going on, fewer people who know the least the better. And they were mostly political appointees. Wonder why there were no whistleblowers at the IRS? Or is it too early to expect that?


gspencer said...



Does anyone know?

Are the Gruber videos part of the evidentiary record developed at the district court level in the Halbig case, and therefore were seen/considered by the appellate court?

Or did they just come to light?

Gruber is simply explaining what the law plainly states. Only state exchanges get the subsidies.

n.n said...

Their repeated lies of omission and commission empower law-abiding Americans to resist their claims to authority. Government workers should speak more and often.

Anonymous said...

Gruber claimed: "This is the only sensible reading of the Affordable Care Act and is corroborated by every single person who helped craft the law.”...

Great!@ So, Gruber, where are the contemporaneous statements by ObamaCare supporters stating explicitly that everyone would be eligible for ObamaCare tax credits, regardless of whether or not their state set up an exchange?

2009 - 2010 statements only allowed. Statements made after you Democrats realized you had a problem don't count.

If "everybody thought so", surely SOMEONE said so.

Michael said...

Gruber indeed intended for people in all states to get subsidies, because he intended that all states would establish exchanges. But if they didn't, or were reluctant, he clearly intended availability of subsidies to be a tool of coercion to make them go along.

Remember that this abomination passed on a purely partisan basis without a single vote to spare in the Senate and only a handful in the House. Proponents are now interpreting it in ways that, if they had been honest and up-front about to begin with, would have prevented it from passing. How the Cracks of the world can dismiss this fundamental underlying dishonesty as a "Drudgefest" is beyond me.

Anonymous said...

Hey @Crack, you know what, you're right! Who cares about a few words, more or less.

You know how the law says the Bush tax cuts expired after ten years? That was just a little mistake. They were actually supposed to never expire. Oh, and the end of the death tax? That wasn't supposed to expire either. That's just a couple words to "fix", too!

Of, and the capital gains tax rate? Silly us! It was supposed to be 0%! I'm sure you'll be ok with President Perry fixing that, because it's only a few words, right?

So glad we got that all cleared up.

Anonymous said...

As the old line goes: don't piss on my leg and tell me its not really piss. I think I have that right. Mostly.

Zach said...

Change two words and the problem goes away.

It really isn't a question of whether the law should be changed. It's a question of who gets to change it, and what compromises have to be made to get that change.

The Administration would like to argue that no changes need to be made -- everything can be done with findings, agency rules, and executive orders.

Congress (to the extent that it has a collective will) would like to say that changes to the law require a new law -- both houses plus the president. If that's the case, they will probably want to negotiate for other changes in addition to the two words.

Ann Althouse said...

"It's a typo. It requires a two-word change."

What is a typo? What exactly are you talking about?

The statute? The statute that Gruber said was written like that to put extreme pressure on the states?

jr565 said...

gruber said he he said and he believed it when he said it. And he said it to strongarm states to go along with Obamacare.
Now, in the present they want to pretend like it never happened. Along with the "if you like you plan you can keep it" yet more talking points swept under the rug.

Ann Althouse said...

"I dare you to write back, telling me adding two words to the ACA is more important than someone black dying on these streets - for no other reason than whites brought us here to do their work -for another century. It's bullshit."

The fact that some other problem is important too is not a good argument… about either problem. Stay on topic here.

Old Dad said...


Gruber is out of his element, as are most legislators and almost all media types. The power players behind PPACA wanted subsidies for as many as possible, but they also wanted states to set up the exchanges. That couldn't be mandated, and so the law has obvious incentives and penalties to that end. They gambled. They lost, for now.

Gruber is simply inexperienced at sophisticated CYA. Josh Earnest is better.

With the help of a complicit media, this regime has been remarkably adept at denying the obvious. That's Earnest's task now, and Gruber's speakos are a problem. I suspect there will be much more.

I have no idea what SCOTUS will rule. PPACA contradicts itself in this instance. It clearly states that only purchasers through state exchanges are eligible for subsidies. That was a tactical error, not a typo. Gruber said the plain truth, and now he feels compelled to bullshit.

Oh, and Crack hates whitey, but it's a well intentioned hate. He wants them to "improve."

The Crack Emcee said...
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Jupiter said...

I laughed when the Democrats described Candidate Obama as a "constitutional scholar", when it was readily apparent he had never even read the thing. But I have to admit, he has found the fatal flaw in the Founders' careful plan, and he may well have the means to bring the whole thing down.

The position of the Administration is that the threat to withhold subsidies from States that did not form exchanges, having failed to achieve its object, is no longer useful. The Administration does not wish to carry out its failed threat, and therefore the threat is a nullity. The only "intent" that is important is that of Barack Obama, or, given his recent bizarre detachment, that of his handlers.

We seem to have gone from the late Republic to the reign of Caligula, without ever seeing Octavian, let alone Augustus. Wasn't there supposed to be a civil war, as well? I suppose there's still time.

Anonymous said...

How many more lies from the White House will it take before Obummer is finally impeached?

Zach said...

It's kind of funny how the NYT is taking the Pravda approach to this story:

Nothing to see here headline -- check.

Passive voice, emphasizing distance and separation from current events -- "Ex Obama aide" and "clashes with current stance" instead of "Health care architect concedes plaintiff's point" -- check.

Long and detailed quotes from Gruber and from the White House Press Secretary explaining their current position, compared with a minimal excerpt from the (quite detailed and specific) explanation Gruber gave in 2012 -- check.

The vital last quote, summarizing the story and giving the take home message, is not from Gruber in 2012 or Gruber today -- it's the White House Press Secretary, reciting the party line -- check!

Mr. D said...

The fact that some other problem is important too is not a good argument… about either problem. Stay on topic here.

Crack is staying on topic. It's the only topic he has lately. Didn't used to be that way, but that's how it's been for months now.

And I agree -- Gruber's statement is highly probative.

The Crack Emcee said...
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The Crack Emcee said...
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EDH said...

What was so important about the states implementing their own exchanges that the Democrats tried to bully states into creating them by withholding subsidies?

The Crack Emcee said...
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Jupiter said...

"How the Cracks of the world can dismiss this fundamental underlying dishonesty as a "Drudgefest" is beyond me."

As long as the President's party controls the Senate, a "Drudgefest" is exactly what this is. Even if the Democrats lose the Senate in the coming elections, it is not clear that the political will exists to force this administration to submit to the rule of law.

This is the same as the IRS claim that 30 or 40 hard drives all crashed simultaneously. What they are saying is, "While we are not willing to do what you demand of us, we are at least willing to lie to you about it, rather than openly proclaiming your impotence. Will you be content with the lie, or must we make the proclamation?"

Ann Althouse said...

Here's the PDF of Halbig. Excerpt:

Section 36B of the Internal Revenue Code, enacted as part of the Patient Protection and Affordable Care Act (ACA or the Act), makes tax credits available as a form of subsidy to individuals who purchase health insurance through marketplaces—known as “American Health Benefit Exchanges,” or “Exchanges” for short—that are “established by the State under section 1311” of the Act. 26 U.S.C. § 36B(c)(2)(A)(i). On its face, this provision authorizes tax credits for insurance purchased on an Exchange established by one of the fifty states or the District of Columbia. See 42 U.S.C. § 18024(d). But the Internal Revenue Service has interpreted section 36B broadly to authorize the subsidy also for insurance purchased on an Exchange established by the federal government under section 1321 of the Act. See 26 C.F.R. § 1.36B-2(a)(1) (hereinafter “IRS Rule”)....

The crux of this case is whether an Exchange established by the federal government is an “Exchange established by the State under section 1311 of the [ACA].”...

The government argues that we should not adopt the plain meaning of section 36B, however, because doing so would render several other provisions of the ACA absurd. Our obligation to avoid adopting statutory constructions with absurd results is well-established. See Pub. Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 454-55 (1989). Under this principle, we will not give effect to a statute’s literal meaning when doing so would “render[ the] statute nonsensical or superfluous or . . . create[] an outcome so contrary to perceived social values that Congress could not have intended it.” United States v. Cook, 594 F.3d 883, 891 (D.C. Cir. 2010) (internal quotation marks omitted). But we do not disregard statutory text lightly.

Zach said...

The key elements of Pravda-style reporting:

Disagreements about the party line are always minor and technical -- covered in the headline.

Deviations from the party line occurred in the past, but no longer -- Gruber's current email disavows his earlier (quite detailed and specific) comments.

Damaging facts are always in dispute, and nobody can tell for sure -- the earlier comments are not quoted in their entirety (Gruber's email disavowing his earlier comments is quoted at greater length than the comments themselves)

The conclusion of the article is an appeal to authority and the statement of the current party line -- the quotes from the White House Press Secretary.

THOMASt WREN said...

Gruber: "Who are you going to believe, me or your lying eyes."

EDH said...

We should thank Crack (of the last, what, several months?) for single-handedly disabusing us of any notion that Obama could ever be harboring just below the surface some monomaniacal obsession that secretly drives his world view and administration's policy.

PB Reader said...

And the Democrat faithful change tune right on cue.

Anyone who doesn't agree that the words of interest in the PPACA don't mean what they say and weren't put in there specifically there for that purpose is illiterate or a liar. No alternative or middle ground.

That no democrat stands up with courage and integrity to say that says all we need to know about the modern Democrat party.

What say we give Obama a choice? We'll give him the subsidies on the federal exchanges and pass legislation to that effect IF he deports every illegal alien in the country and builds the damn fence!

Ann Althouse said...

@Crack I asked you to stay on topic. Hence the deletions.

Ann Althouse said...

Do not discuss deletions in this thread. Keep it substantive. If you have a problem with the moderation, email me.

pm317 said...

Thank the lord for moderation!

PB Reader said...

Shouldn't MIT place Gruber on unpaid leave for such intellectual dishonesty? He said what he said and meant what he said. To deny that now should be conduct unbecoming a member of the faculty.

chillblaine said...

President Selfie should get out in front of this and go hat-in-hand to Congress and ask them to re-write it. He will have to give up something in return. I would take abolishing the IRS and tax overhaul as a good start.

His choices are that, or ignore the decision, or assert his Executive Authority. What he does depends on how many news cycles he loses.

Rockport Conservative said...

When I was in high school in the early 1950's a frequent topic of discussion was the ethics of any means to an end. I suspect that is not mentioned much anymore, at least not in a derogatory way.

Beldar said...

Goebbels also understood that even a Big Lie needs to be wrapped in bits and pieces of truth.

(I'm allowed to say that, because I went to college with Mike Godwin, the author of Godwin's Law.)

The Crack Emcee said...

Ann,

I didn't see the deletions but I still think I am staying on topic - here's the fix:

"You could get subsidies set up by the state OR the federal government Department of Health and Human Services"

Reduced to two words:

"Or H.H. S."

Meanwhile, as usual, I'll stand here - as a black man - and watch whites debate this VERY IMPORTANT TOPIC from the gutter, with the rest of the dark skinned people who quite clearly "don't understand" how much more vitally important those two words are over settling the centuries old debt this country owes us.

I ask you again - what's changed?

The Drill SGT said...

“I made a mistake in some 2012 speeches in describing the tax credits,” Mr. Gruber said in an email on Friday. “It is clear from all my writings and modeling that I did over this same time period that tax credits are assumed to be available in all states. This is the only sensible reading of the Affordable Care Act and is corroborated by every single person who helped craft the law.”...

Clearly, the contemporaneous remarks of one of the Architects of the bill (who crafted the Bill) don't corroborate today's Dem position.

The Crack Emcee said...

EDH,

"We should thank Crack (of the last, what, several months?) for single-handedly disabusing us of any notion that Obama could ever be harboring just below the surface some monomaniacal obsession that secretly drives his world view and administration's policy."

Yes, you should:

I've been honestly telling you everything that's going on, and you denied it - because, as whites, you'll say/do/believe ANYTHING in an effort to get the upper hand.

Silly white people. I'm the only friend you have.

But, I know, you prefer the soothing tones of John McFartface.

Unfortunately, you're stuck with the guy who, as you admit, reflects reality.

Thanks - really - for finally giving me credit,...

Beldar said...

Josh Earnest is indistinguishable from Saddam's Iraqi Information Minister, Muhammed Saeed al-Sahaf (a/k/a Comical Ali, a/k/a Baghdad Bob).

He has the benefit of being entirely predictable. But each Obama press secretary has been more vile and slimy than the last. It'll be interesting to see, when it — inevitably — becomes time to throw him under the bus, too, whether they'll replace him with a human being, or instead whether they'll just go to some Google-driven automaton that communicates exclusively via Twitter.

Dust Bunny Queen said...

A typo is an inadvertent slip of the fingers. Using some letters in place of others. Using a complete phrase such as "exchanges established by the States" multiple times in the document is not a typo. It is a deliberate use of those words. They meant the clause to be a punishment for those States that might refuse to set up their own exchanges, never thinking it through that MANY States would not want to do so because of the additional potential costs of a massive Medicaid expansion.

The Medicaid expansion of the ACA was/is really the bone of contention. The States would be forced to expand the coverage of people who would qualify for Medicare. The act originally had the threat of withholding Medicaid funds if the States didn't cooperate. Roberts gutted this provision which opened up the door for the States to opt out.

One portion of the Supreme Court’s 5-4 decision to effectively uphold the Affordable Care Act (ACA) could have profound implications for the law’s goal of universal health coverage: it appears states could opt out of raising their Medicaid eligibility standards to 133 percent of the federal poverty level in 2014 without losing their existing federal Medicaid funding as a result.

The ACA’s Medicaid provision is expected to extend coverage to up to 17 million people within the next decade. But the teeth of the provision, as originally conceived, was that the law gave the U.S. Department of Health and Human Services (HHS) the authority to withhold some or all of a state’s federal Medicaid match (between 50 and 75 percent of each state’s spending for the program) if the state did not adopt the new eligibility standards. the rest is here


The whole law was poorly written, ill-concieved and has been jacked around illegally so much by Obama and his bureaucrats that it is unrecognizable as the original act was written. Not a typo. Just a really poorly designed and poorly thought out law.

Roberts played this one very well and very cagily.

QUOTE: “We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders.”

“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”"

a psychiatrist who learned from veterans said...

Nice argument contra Gruber. The best argument reveals the truth of a situation, as you do here admirably.

Biff said...

I work in and around the healthcare community, especially the Cambridge MA community, and the approach to PPACA has been "the ends justify the means" from the beginning, and no one with any power seems bothered by that, since PPACA is all about consolidating power.

The political world collectively clutched its pearls when Joe Wilson said "You Lie!" during one of Obama's healthcare speeches, yet Wilson seemed to be the only honest person in the room that day.

Gruber's comments are merely snapshots taken from a pattern of contempt for the public and the process that has been developing for years, and I really don't know if anything can be done to restore integrity to the system at this point.

Jupiter said...

"But we do not disregard statutory text lightly."

While I can see that a Professor of Law might find comfort in that quaint sentiment, it is clear that the parasitic bureaucracy ensconced in Washington has no such qualms. Obama may imagine that he is the One; in fact, he is the foam on the wave, the careless Master from whose hand fell the leash. The hounds now course freely, seeking him they might devour.

Fernandinande said...

What's more likely, that he "made a mistake in some 2012 speeches" or that he's lying now?

Getting caught in a lie is a violation of the Political Flunky's Code of Behavior.

Curious George said...

"PB Reader said...
Shouldn't MIT place Gruber on unpaid leave for such intellectual dishonesty? He said what he said and meant what he said. To deny that now should be conduct unbecoming a member of the faculty."

LOL seriously? Those fuckers Michael Mann and his AGW brethren lied about their research and their universities backed them up. They're all lefties and they all stink, rotten to the core.

Richard Dolan said...

It many prosecutions under Section 1001, prohibiting false statements to gov't agents, the US Atty prosecuting the case would attack the kind of defense offered her by Althouse regarding the statements by Earnest. Essentially, the prosecution would argue that Earnest came up with a string of half-truths that were doing the work of a complete lie.

Note, also, that Gruber's statement that, when the ACA was before Congress, everyone "assumed" that tax credits would be available on all exchanges, is consistent with what he said in 2012. Everyone pushing the ACA made that assumption because, as Gruber explainers then, the pressure on politicos at the state level to set up an exchange and get the tax benefits for their own voters would be irresistible, precisely because those voters would have to pay the tax required by the ACA in all events. Same was true about the expansion of Medicaid, which the proponents of ACA viewed as inevitable given the penalties built into the ACA for states that refused to go along (the provisions later stricken by a 7-2 vote in the SCOTUS).

Quite apart from the spectacle that Gruber's preposterous attempts to explain away his prior comments has created, no one in this White House seems to care at all about the corrosive effect so much rampant, obvious lying by high gov't officials and their semi-official flacks is causing. The lies not only keep coming, but are of the sort that shows a contempt for the intelligence of the American public -- e.g., about O-care ("you can keep your doctor," "it will lower health care spending and insurance premiums"); about gov't snooping ("not intentionally collecting data on ordinary Americans"); about the IRS targeting of tea party groups ("just some low level rogues in Cincinnati"; "the emails from the critical time were destroyed and were unrecoverable anyway"); and on and on.

Don't these people understand that the entire left-liberal agenda hinges on public acceptance of the federal gov't as a reliable, honest and competent organization? Credibility, once lost, is very hard to get back. But for Team Obama, it's all about the short-term advantage, what they can spin and who they can co-opt.

Gahrie said...

It's a typo. It requires a two-word change

Two words can make a world of difference.

I am now convinved that Crack is a Liberal attempting to be a moby/troll.

Joe said...

At the time, [Gruber] thought the law as written would prevent any state from refusing to open an exchange, thus subsidies would be available in all the states.

No he SAID that the law would make it financially untenable for a state to refuse to open an exchange.

I'm also mystified by the claim that changing two words would change the intent of the law. How? I haven't read the entire law, but what I have read, it goes to great lengths to lay out that exchanges are run by states and subsidies are available only to people who purchase insurance through those exchanges. Why would there be paragraphs of laws laying this out if it didn't matter?

But, I'm willing to be persuaded otherwise, so anyone making this claim needs to show the two words in context.

(Moreover, if claiming a typo can cause the courts to change the law, why not take it all the way and claim that "no" in the first amendment is a typo and it should read "Congress shall make a law..." Hell, why stop there? Fuck having a congress, let's just have judges write the damn laws according to what is "best".)

Gahrie said...

Gruber's comments in 2010 were a kinsley gaffe...A Democrat politician accidentally telling the truth.

Diogenes of Sinope said...

Lying works for politicians with main stream media support, the Left. These clear, contradictory statements will be minimized and obfuscated by our politically biased media.

Ironclad said...

This is exactly the reverse "47 Percent" remark video that Obama played on Romney to show his "true feelings." Remember how we heard over and over that "Romney really means it!" despite his denial or trying to explain the context.

Gruber had no reason to lie when the video was made - they were smug in their "success" and he just let everyone know how smart they were to force States to set up exchanges by penalizing them if they did not through loss of goodies. Now he has been caught he has to try to dig out of the hole - but the video shows the truth.

Courts need to read laws as they are written, not as they are desired to be. Otherwise we are in the land of the lawless.

John Lynch said...

I don't read people who lie to me.

ussmidway said...

Jonathan Money Grubber billed the taxpayers over $400K for all this wonderful expert advice on the PPACA. Perhaps we can get a refund.

I love the idea he might be required by MIT to disavow his prior work or submit to a faculty disciplinary proceeding. However, given the depressingly low value placed on integrity within academic circles, I doubt he will ever be called to account by his MIT peers.

John Lynch said...

Academic norms don't belong in politics. Stop giving academics any special status or authority when they make political statements. Academia, especially to social sciences, has long since given up any credibility when it comes to offering unbiased opinions about policy.

OK, he lied. I'm shocked, shocked to find that a liberal academic lied to advance a Democratic policy agenda. Maybe, rather than wringing our hands over an isolated case, we should be skeptical of any policy recommendations coming from academics who are aligned with one of the political parties.

This didn't bother me at all because it's so common!

Paul said...

Oh what a tangled web we weave when we practice to deceive (especially on video.)

Go read the works of Paul Joseph Goebbels. That was Hitler's chief propagandist.

Lies that serve the state are not lies in their view, and are subject to revision as the situation changes.

And notice, Goebbel controlled the media in Germany, not unlike Obama and the Democrats controlling the MSM and what they print.

DKWalser said...

I have a serious question (as in a question I don't have the answer to and to which I'd like an honest answer: Suppose the Supreme Court takes up this case and that in their briefs or in oral arguments in support of the law, attorneys continue to claim that no one associated with passing the bill ever intended using the offer of tax credits as an inducement to get states to set up exchanges. That claim is objectively false. Is there any real risk that the attorneys would be disciplined by the Court for making false statements to the Court?

amie lalune said...

Hey, Crack -- you got a whole lot more of your people living off the rest of us than ever did the work of white people in the past.

You really need to get over it -- and -- what's the term? oh, yes -- "Move On."

SteveR said...

Amazingly we are stuck with the prospect that it will come down to Roberts, as if it won't be about the obvious intent of the legislation, as passed, but rather the desire to hold the ACA together in spite of the legislation. Typical for politicians and the partisan media, but I'm not happy that the SCOTUS takes this path with the Constitution.

Left Bank of the Charles said...

Ann, if this is lying, aren't you lying too?

To have a true smoking gun you'd need a statement from 2009 or early 2010 when the law was under consideration. Is there evidence that Gruber was even in the room when this provision of the statute was written?

The legal issue was addressed in the IRS regulations that came out in April 2012. It was a known problem, discussed in the comments on the regulations, and the legal question now is whether the regulations fix it.

Also, it's not clear that Halbig invalidates the tax credits, which is what everyone is saying it does. The case itself is about the mandates, not the tax credits. How does Halbig have standing to get between the tax credit claimant and the IRS?

Yes, we are on the path to having Obamacare states and Obamacareless states. That may not have been what was intended. But is that necessarily a bad thing?

damikesc said...

I miss the days of Bush --- where parsing every utterance wasn't a requirement.

It's a typo. It requires a two-word change.

Except it's NOT a typo. It was intentional and a plan.

Sure, change two words --- but don't expect ONLY two words to be changed. Dems don't run the show here. They can't change a word unless the Right goes along and that is not happening.

Sucks to have major legislation where one party, literally, has zero skin in the game to protect or defend.

I dare you to write back, telling me adding two words to the ACA is more important than someone black dying on these streets - for no other reason than whites brought us here to do their work -for another century. It's bullshit.

Given that its blacks doing the killing, it hardly seems like a problem for the country.

Seems like your community might want to fix that.

So, yeah, this bill dwarfs the black community's proclivity to slaughter one another for no reason.

You realize you only have to change one word to eliminate blacks from voting. Only ONE word there.

So, let's do it, huh? It's so small, after all.

What was so important about the states implementing their own exchanges that the Democrats tried to bully states into creating them by withholding subsidies?

They wanted a BIPARTISAN bill so badly and they figured if they make Republicans create exchanged, it shows that REPUBLICANS support the bill.

I don't know how a court can argue legislative intent when nothing contradicts the plaintiff's claims.

Anonymous said...

"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."
    "The question is," said Alice, "whether you can make words mean so many different things."
    "The question is," said Humpty Dumpty, "which is to be master—that's all."

Birkel said...

Somebody asked above why Obama-Insurance required state-based exchanges. A few reasons:

1) There are insurance commissioners with staffs in every state that wield outsized political influence. Also, as with most bureaucracies, insurance commission bureaucrats are reliable Democrat voters, by and large. Pissing off those groups and expecting senators/congressmen to vote to reduce the power of reliable constituents is a failing political move.

2) Administrative costs borne by the state do not count against the CBO score of the bill as (laughably) budget neutral. It is obvious that Obama-Insurance will cost trillions against the debt in short order and place and already weakenedU.S. fiscal situation in serious jeopardy.

3) Single-payer is not politically popular. Phasing into single-payer may be possible if we can just keep that damned frog in the pot.

My personal favorite reason, however, is that legislators are risk-averse and stupid. The risk of a federal system is that all the blame falls on the party who passed the bad legislation that fails to meet any of the proposed benefits congresspeople promised. Witness the failure of the website launch. Pushing blame down to the state level - or off to administrative agencies - satisfies the risk aversion.

The stupidity is thinking everybody else is as craven and spineless as they are. They are too stupid to realize other people might be motivated to resist the abomination that Democrats created.

Sorry that was long.

John Althouse Cohen said...

What I want to know is: if it was a speako, what did he mean to say?

Fritz said...

PB Reader said...
"Shouldn't MIT place Gruber on unpaid leave for such intellectual dishonesty? He said what he said and meant what he said. To deny that now should be conduct unbecoming a member of the faculty."

That's the funniest thing I've read all week.

Mark said...

What would be the equivalent construction Roberts would use in supporting the Federal position this time?

Remember, last time Roberts supported the Federal position by saying "You argue that it isn't a tax, but I say it is plainly a tax, therefore it is Constitutional."

This time: "You say it doesn't mean 'the States' so you can give subsidies to citizens of those states without exchanges, but I say it plainly does say 'the States' therefore it is Constitutional. Because the voters really screwed up and We the Court just as fed up with the voters as you are."

Jupiter said...

“Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”"

When I first read that, at the time it was published, I thought it was an admirable expression of judicial humility. Then thought about it some more. What he is saying is that it is not his job to defend the Constitution from duly elected officials who wish to set it aside.

But of course, that is exactly what it is his job to do. What does he think he is supposed to protect us from, meteors?

Birkel said...

Mark:
This is not a constitutional case. This is a case about administrative interpretation under the APA.

Therefore:
I say it plainly does say 'the States' therefore it is an impermissible act of the IRS to interpret the plain language in a way that is unsupportable.

Hyphenated American said...

"Meanwhile, as usual, I'll stand here - as a black man - and watch whites debate this VERY IMPORTANT TOPIC from the gutter, with the rest of the dark skinned people who quite clearly "don't understand" how much more vitally important those two words are over settling the centuries old debt this country owes us."

Crack, the moment you realize that this is indeed an important topic is the moment you will start getting off the gutter. I am telling you this as your only white friend who knows how it is, and who does not have any false guilt feelings to cloud my thinking.

Come on, stop being such a tool , and learn the truth. I am helping you here.

Phil 3:14 said...

Its easy to provide coverage for all. It's so much harder to pay for it.

n.n said...

Birkel:

Excellent assessment. Obamacare (aka Democrat-mangled "RomneyCare") was intended to create an illusion of reform through delegation of risk and costs. It's not in their favor to address affordability and availability, and certainly not the power structure which developed around formation of government enforced monopolies and behaviors.

That said, to be fair, the Democrats are especially vulnerable in their overpopulated cities, which are economically and socially unsound. Their best bet at retaining control, and peace, is to increase subsidies, increase deficit spending, increase private leverage, or to increase taxes. They have done the first three, but this "solution" is clearly unsustainable. They threaten to do the fourth, but it would alienate a large percentage of their constituents.

Finally, the greatest concern is that there are overlapping and convergent interests. There is clearly some competition between the two major parties, but it is equally evident that they share interests. In the absence of morality, or with a selective morality, it is only competing interests that will prevent amoral people from running amuck. Fortunately, we still have a balance between moral and immoral individuals; and diverse interests capable of moderating the amoral.

Dust Bunny Queen said...

@ Jupiter

What he is saying is that it is not his job to defend the Constitution from duly elected officials who wish to set it aside.

Actually, I interpreted it completely different. It is their job to asses the Constitutionality of the laws not whether the law is a good idea or not or whether the consequences of the law or good or bad.

Basically, I heard..."You elected these bozos and let them make these stupid decisions. It isn't our job to fix your bad choices in elections....Kick the bums out or live with it."

Mark said...

Birkel, I'd bet solid money that this ends up in front of the Supreme Court. There's enough turmoil at the District Court level that the Supreme Court pretty much has to hear it.

Since the question at the heart of the complaint is how much discretion Administration agencies have in interpreting a law passed by Congress and signed by the President, in my opinion it very much does count as a Constitutional case. Perhaps the hostess can address your point from a scholarly perspective.

(I think the Administration's position -- and Gruber's current position -- is that no one would be stupid or venal enough to actually pass and sign a law that penalized citizens for merely living in States that won't jump through hoops for the feds, hence the "typos" and "speakos". Therefore, since the law as worded is obviously stupid and venal, then the Agencies involved are NOT interpreting the law, merely implementing the law as it was obviously meant to be implemented. The last thing the Administration wants is for this turkey to have to fly past the Supreme Court again.)

machine said...

So...he has the GOP fighting against tax breaks...in only the red states.

ya burnt...again.

furious_a said...

Race Hustler: It's a typo. It requires a two-word change

Two word change: Section 1. All whitepersons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of white citizens of the United States...

Hagar said...

"Democracy is the process by which the voters get the government they want, and they deserve to get it - good and hard!"

furious_a said...

I made a mistake in some 2012 speeches in describing the tax credits 2012 speeches in describing the tax credits...It is clear from all my writings and modeling that...

...we have always been at war with Eastasia.

cubanbob said...

It doesn't matter what Gruber and all the progressives who wrote the bill thought it meant. It doesn't matter what every congressional staffer who contributed to the bill thought the bill meant and it certainly doesn't matter what the executive branch thought congress meant. What does matter is what every member of congress who voted for this bill thought it meant and since they didn't know what was in the bill until they passed it they couldn't form an intent since they had no idea of what was in it. Therefore when this comes before the Supreme Court the court shouldn't waste anytime determining intent and stick to the law as written. As for absurd results, as Roberts and the court said, that is what elections are for. While I have no crystal ball or legal expertise I find it hard to conceive that a court that already ruled against the mandate and the coercion of the States is going to go along with this newly found revisionist congressional intent.


Rusty said...

John Althouse Cohen said...
What I want to know is: if it was a speako, what did he mean to say?


Does it matter?
We know that anything he says subsequently will be in service of that original lie. The effort it would take us to parse the meaning of his every utterance isn't worth the effort.
You can with, good conscience, dismiss his opinion and look for a more honest authority.

ken in sc said...

Is Josh his name or what he does?

Birkel said...

Mark:
What I wrote was correct. You are welcome.

hoyden said...

A half truth is a whole lie.

Dust Bunny Queen said...

since the law as worded is obviously stupid and venal, then the Agencies involved are NOT interpreting the law, merely implementing the law as it was obviously meant to be implemented.

What you are advocating is chaos. Instead of going by the "letter of the law", the plain language written in by the lawmakers as authorized under the Constitution, you want unelected bureaucrats to just make it up as they go along according to what they "think" the lawmakers said or should have said.

We elect the members of CONGRESS to make laws. Just because they make stupid laws or laws that have terrible consequences doesn't necessarily make the law unconstitutional. All sorts of stupidity can be Constitutional.

If we don't hold the lawmakers accountable for their stupid, ill thought out laws and allow people to just make it all up as we go along according to what is popular at the moment, it would be chaos and anarchy. There would be no point in obeying ANY laws if they were always subject to change at the whims of unelected functionaries and subject to Ouija Board types of divining what they meant instead of what they actually wrote and voted on.


Perhaps the answer would be to allow the laws to be read and analyzed in plenty of time to fine tune problems and to be able to UNDERSTAND what is actually in the law. Perhaps, NOT ramming through such massive legislation UNREAD is not such a swell idea. Hmmmm?

Dust Bunny Queen said...

is that no one would be stupid or venal enough to actually pass and sign a law that penalized citizens for merely living in States that won't jump through hoops for the feds

Actually, the DID pass such a law when they force us to either buy a product that we may not want or need or be penalized for living in the US and NOT jumping through the hoops of purchasing their designated product. Insurance.

For merely living and breathing in this country you are forced to buy or to pay up anyway.

Jupiter said...

DBQ says;
"Actually, I interpreted it completely different. It is their job to asses the Constitutionality of the laws not whether the law is a good idea or not or whether the consequences of the law or good or bad."

I can see that interpretation, but I don't agree with it. Roberts said at the time that it was his duty to interpret the law in the sense most favorable to its constitutionality, and that it should only be struck down if there were no possible interpretation under which it could be justified. He found that favorable sense, by construing the individual mandate as a tax, even though the people who crafted the law made it clear that the intention was to coerce behavior, not to raise revenue. By that logic, the government may not search your house without a warrant, because the fourth amendment prohibits it. But it may levy a tax upon those who do not open their houses to warrantless searches. It may even levy a fine, and call it a fine, and in Roberts view, the duty of the Court is to call it a tax, and approve it, so long as it is popular with the voters.

The Framers did not intend to devise a democracy. They intended to place some things -- I would argue, a great many things -- beyond the power of the government. In Roberts' view, the business of the Supine Court is to search diligently for fig leaves, with which the tyranny of the majority may be disguised, however unconvincingly, as the legitimate exercise of constitutional power.

Hagar said...

The Supreme Court is the last stop for deciding cases in common law and statutory law as well as Constitutional matters, but nowhere does it say the Supremes can nullify any sort of law based on their personal opinions of its desirability.

As any other judge, they are only to state what the law is, not what they think it ought to be.

And they definitely are not charged with protecting us from our own foolishness!

Mark said...

Machine, there are two issues here, one of principal (Government should be less entangled in our lives, not more so, which plays really well in Red States) and one of tactics, which obviously you think "wins" for Dems.

Here's a news flash for you though; the people who are going to be hurt most by this in the "Red" states are the ones who vote predominantly Democratic anyway. That would be the unemployed, underemployed, and self-employed. (Okay, that last group includes a lot of small business owners who do tend to be more Republican, but the ACA already screws those so hard that anything that helps to kill it will be welcomed.) The lack of subsidies is going to positively ream the "invincibles" that the system needs to avoid the Death Spiral scenario.

So keep whistling.

Birkel, I'm not saying you are wrong in that the IRS is legally bound to follow the letter (words, as it were) of the law. But it is a Constitutional case if the Supreme Court agrees that it is, and I think they will. In the end theirs is the only opinion on this matter that matters.

dbp said...

Once you cut through the all the contradictions, what it comes down to is that they wanted to interpret the law one way in the past and a diametrically different way now.

In the past, reputation and intrgrety used to be considered essential in a public official or public intellectual. Sadly, this is not so as much now. I say, let us work together to bring back reputation as an essential qualifier.

What this entails is that people like Gruber have lost the right to expect any heed to their opinion on any matter of public import.

Jupiter said...

"I think the Administration's position -- and Gruber's current position -- is that no one would be stupid or venal enough to actually pass and sign a law that penalized citizens for merely living in States that won't jump through hoops for the feds, hence the "typos" and "speakos"."

No, Gruber's position is that he always believed that subsidies would be available to people living in States which did not open exchanges, and that his speech did not accurately reflect that belief, just as a typo does not accurately reflect the communicative intent of the typist. Hence, "speak-o". This from a professor at MIT.

Given the considerable length and complexity of some of those utterances, this is an absurd claim. Take this for example, from January 2012;

"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. But, you know, once again the politics can get ugly around this."

http://tinyurl.com/q7lwuf7

The man is a spectacularly poor liar.

khesanh0802 said...

Ann
"Gruber's statement is highly probative that the intent corresponds to the literal meaning of the statute."
Will Gruber's statement make its way into court?

khesanh0802 said...

Michael K

Do you have a source for your quote at 10:41? Thanks.

Michelle Dulak Thomson said...

Seconding JAC. When did you last see a "typo" that was a graf or more long? That's not a "speako," that's a fugue episode.

Tillyosu said...

Funnily enough, I think Althouse has given Gruber an out. He could simply say that his comments were dishonest, and that he was simply trying to frighten the states into setting up exchanges. He'll sacrifice his credibility, but he'll save the administration some embarrassment. I wonder how much that $400,000 fee is worth now...

google is evil said...

3 years of following the path of this law, I can now understand, at least for myself, why totalitarian's like Obama, Pelosi, et. al, want State mandated healthcare so badly they are willing to risk everything to get it, because once in place, they will have COMPLETE control of every aspect of your life. This includes whether you are ever born, and when you die.

By fighting it so hard, it has made clear their intentions. The current argument that the law doesn't mean what is written is laughable. The advantage, should the Conservatives gain control of the legislative process and Presidency, the can write one simple law to produce all of their wishes. Think about it. Pass a law that simply says, "Improve the tax laws". The President then can shut down the IRS and implement a flat tax. Imagine the possibilities!

Birkel said...

Mark:
I am trying to help you speak/think/write more clearly.

A case is constitutional when the basis for the decision is the Constitution. Statutory interpretation of the Admin. Procedure Act is not constitutional, but statutory.

Education provided gratis.

Clark said...

khesanh0802: Michael K, in his 10:41 post quoted a paragraph from "The Illegal Rule to Expand Tax Credits Under the PPACA: A Response to Timothy Jost," by Michael Cannon and Jonathan Adler, which appeared on August 1st, 2012 on the Health Affairs Blog.

The Crack Emcee said...

amie lalune,

"Hey, Crack -- you got a whole lot more of your people living off the rest of us than ever did the work of white people in the past."

I know - whites were complaining we wouldn't do their work, then, either - complaining, that those they abuse won't do what they expect, seems to be what whites do.

What's changed?

The Crack Emcee said...

furious_a,

"Two word change: Section 1. All whitepersons born or naturalized in the United States,…"

Hey - we're back to the original constitution!

khesanh0802 said...

Clark @ 0213

Thank you.

Gahrie said...


I know - whites were complaining we wouldn't do their work, then, either - .....
What's changed


We don't want you to do our work anymore...we want you to do your work now...hell any work......

Yancey Ward said...

Gruber is lying right now. It is simply implausible that he doesn't know why he made those remarks in 2012. Even worse, having worked on the drafting of the bill, it is all but certain that Gruber wasn't speaking from his interpretation of the statute in 2012, but was, instead, speaking from authority- in other words, he literally knew why the bill was crafted that way.

Anonymous said...

PB Reader said...

Shouldn't MIT place Gruber on unpaid leave for such intellectual dishonesty? He said what he said and meant what he said. To deny that now should be conduct unbecoming a member of the faculty.


It's worse than that. One possibility is that Gruber is a liar. The other possibility is that he's so unmoored from reality that, having changed his opinions to fit the situation, he has re-written all his memories in order to conform to his newly desired version of reality.

Frankly, I find the latter a more damning condemnation than the former. But one of those two must be true. And in neither case is he qualified to participate in public policy debate.

The Crack Emcee said...

Gahrie,

"We don't want you to do our work anymore...we want you to do your work now...hell any work……"

Without giving us back our money for the work we were forced to do - which can only further benefit you now?

Ha! Completely delusional. As is the expectation that you could ever make us do anything. I mean, looking at your writing, who or what whites truly think they are - other than completely insane killers - is a mystery.

""We don't want you to do our work anymore"

Which you had no right to "want" in the first place.

"We want you to do your work now"

MY work? As defined by who? And where does that assumption come from? You work us from sun up to sun down - for 3 centuries and no money - and then expect us to be all enthused about the possibility of more, starting at a minimum wage - the least possible amount whites can - and just to make whites happy and, possibly, get them off the hook for their crimes?

Insane.

Stop watching TV, man, it's got you trippin',...

Anonymous said...

Mark said...

(I think the Administration's position -- and Gruber's current position -- is that no one would be stupid or venal enough to actually pass and sign a law that penalized citizens for merely living in States that won't jump through hoops for the feds, hence the "typos" and "speakos".)

The problem for this claim is that the law most explicitly said that any State that did not expand Medicaid the way that ObamaCare demanded would lose ALL Federal Medicaid funding. The Supremes ruled that was an unconstitutional commandeering of the States, and that all the Feds could do was offer more money to the States that did expand Medicaid coverage.

But ObamaCare did most explicitly try to punish all the residents of any State that refused to jump through the ObamaCare hoops WRT Medicaid, and no one has denied that. So the idea that they wouldn't do that WRT Exchanges is totally ludicrous.

Anonymous said...

please do not quote Crack in your posts...or at least keep the citation as concise as possible.
He really has nothing more to say and he continues to say it in the worst way.


Thank you on behalf of those of us for whom the aforementioned is automatic scroll-over country.

Kansas City said...

Interesting take by Ann on Ernest's comments. I wonder if it was purposeful. Because he could just get away with a direct answer on this issue.

As to Gruber, it is obvious that he is now lying. No intelligent person can listen to his earlier remarks and conclude otherwise. It does seem odd that there were not contemporaneous comments one way or the other at the time the law was passed. I think everyone assumed the states would set up exchanges, so it was a minor deal.

With all the controversy now, it is interesting that no one has found statements either way. The supporters are deceptively focusing on the negative - that no one said the credits would not be given on the federal exchange. The more interesting and important question is whether anyone said the credits would be given.

I assume since Gruber knows that any intelligent person knows he is now lying, he will disappear for a significant period of time.

Mark said...

Birkel, if you're a lawyer you're pedantic by profession so I forgive you your petty peeve. Otherwise I'm not sure what you're trying to accomplish other than proving how prissy you can be.

But thanks for the attempt to educate me. That's really precious.