HHS Arguments in Oklahoma Obamacare Case Ignore New Evidence

Last week, the State of Oklahoma filed a motion to inform a federal judge of “newly-discovered facts” in the state’s challenge of Obamacare. These new facts were two audio tapes in December 2012 of Jonathan Gruber, the Obamacare Architect, stating that Obamacare subsidies are tied only to the existence of state exchanges and not a federal exchange. 

Oklahoma’s motion related primarily to these two video tapes and was filed shortly after the two tapes surfaced. On Wednesday, the Department of Health and Human Services (“HHS”) filed its opposition to the Oklahoma motion. The HHS response appropriately limited its opposition to the State of Oklahoma’s motion -- the two tapes. However, logically HHS should have taken into consideration all the new evidence that surfaced since the State filed its motion such that HHS didn’t undermine its own arguments. Specifically, HHS makes eight arguments in its opposition which are negated by the new facts that have been uncovered in the last 10 days.

1. Not all of Gruber’s statements were “Off-the-cuff” – The HHS opposition argues: “As Professor Gruber has clarified, the January 2012 statements on which the plaintiff relies were made ‘off-the-cuff,’ and they do not reflect his understanding of Congress’s intent.” 

However, as Breitbart News reported, three separate publications were uncovered whereby Gruber writes about subsidies and state based exchanges including an article for the New England Journal of Medicine in December 2009 titled “Getting the Facts Straight on Health Care Reform.” In the article, Gruber wrote, “The primary role of the government in this reform is as a financier of the tax credits that individuals will use to purchase health insurance from private companies through state-organized exchanges.”

2. Not all of Gruber’s statements were made “Two years after the fact” – The opposition argues that these statements were made “two years after the ACA was enacted as evidence of Congress’s intent. No credible method of statutory interpretation would permit such 'evidence' to override the defendants’ reasonable interpretation of the Act.” The two January 2012 videos did occur two years after Obamacare was enacted. 

However, as Breitbart News reported, two of the publications were published in 2009 at the heart of the Congressional debate.

3. Arguing Gruber disavowed these statements is hypocritical – HHS argues “Statutory interpretation does not turn on the parsing of extemporaneous statements made by a nonlegislator two years after the fact.” It continues stating “the plaintiff now proposes to submit off-the-cuff, disavowed statements” and that “HHS Professor Gruber has clearly stated, on multiple occasions, his understanding that Congress intended that federal premium tax credits would be available for participants in the federally-facilitated Exchanges.” 

However, the opposition cites as evidence of Gruber’s “actual” opinions several articles that were published significantly more than two years after the ACA was enacted. Doesn’t HHS realize it is contradicting its prior argument by using “after the fact” statements by Gruber to refute his contemporarily made statements?

4. Gruber was not just an economics professor – The HHS opposition describes Gruber throughout its filing as just an “economics professor” with no references to MIT. This is quite a contrast, as Breitbart News reported how the Obama Administration and senior Democrat Congressman described him. In one example, Senate Majority Leader Harry Reid described Gruber not as just an “economics professor” but rather as “one of the most respected economists in the world”.

5. Gruber was not just a nonlegislator – The opposition argues, “The plaintiff’s proffered method of statutory interpretation, then, in which a court would tally statements made by non-legislators -- or even outside observers -- after the fact, would overwhelmingly lead to the conclusion that Congress intended for federal tax credits for the purchase of affordable health coverage to be available in every state.” 

The not-so-subtle attempt to discredit Gruber’s involvement – including comparing him to an “outside observer” – isn’t supported by the facts. Gruber is widely recognized as the “architect” of Obamacare. As reported in Breitbart News, Current Secretary of State and then-Senator John Kerry said: "Having spent years working to make health care work for Americans, Jonathan Gruber has now provided another service: walking everyone through the benefits of the Affordable Care Act reforms so consumers are armed with accessible information.” In addition, Gruber confirmed his role in a video clip on June 13, 2012, reported by Breitbart, when he said, “So I went down shortly after the election. I worked with the transition team to help put the numbers together for the administration. And then, essentially, most of 2009 I was really on loan from the administration to Congress, particularly the Senate Finance Committee, to help them put the numbers together on what became the finance committee bill, which really became Obamacare. Yeah, that's what I did.”

6. According to Gruber he helped draft the bill – HHS argues “Moreover, if the Court were inclined – again, contrary to all recognized principles of statutory construction – to consider the plaintiff’s proffered evidence, it should also consider post-enactment statements from individuals who participated in the drafting of the ACA.” 

However, as reported by Breitbart, Gruber said in a March 11, 2010 video clip, “I helped write the federal bill,” and, “I was a paid consultant to the Obama administration and helped develop the technical details of the bill.”

7. A Poison Pill or “Play-or-Pay” coercive pressure was discussed several times – The HHS Opposition argues, “Because the individual insurance markets depend on the availability of these subsidies, the plaintiff’s theory asks the Court to believe that Congress meant for the ACA to 'function as a poison pill to the insurance markets in the States that did not elect to create their own Exchanges.'” And “The plaintiff surmises that Congress had a different intent, namely, to coerce states into establishing their own Exchanges by threatening to withhold tax credits from the residents of those states that chose to permit the federal government to establish Exchanges on those states’ behalf.” 

However, the evidence proves the exact opposite. Not only does Gruber confirm in the videos and his own publications that subsides are only for state based exchanges, but also, as Breitbart News reported, a colleague and highly respected professor from Washington and Lee University, Timothy Jost, produced two reports prior to the Obamacare Congressional debate outlining this “Play-or-Pay” tactic.

8. Senator Max Baucus, Chairman of the Senate Finance Committee, an “actual legislator,” did discuss subsidies for state based exchanges – The opposition argues “Having found no statements from any actual legislators that would support its fanciful theory, the plaintiff now proposes to submit off-the-cuff, disavowed statements made by a nonlegislator two years after the ACA was enacted as evidence of Congress’s intent.” 

However, as Michael F. Cannon wrote in a spring 2013 publication titled "ObamaCare: The Plot Thickens":

During a Finance Committee markup of the language on September 23, 2009, Baucus admitted that his bill conditioned premium-assistance tax credits on states implementing an Exchange. Indeed, he admitted his bill had to offer tax credits only to states that established Exchanges and withhold them from states that did not. The power to regulate health insurance resides with the Senate’s HELP Committee; it lies outside the Finance Committee’s jurisdiction. Making each state’s establishment of an Exchange a precondition of residents receiving tax credits was the only way the Finance committee could have jurisdiction to direct states to establish Exchanges in the first place.

The Obama administration’s claim that Obamacare always intended to include subsidies for the Federal exchange is falling apart. The US is now on a path to Oblimination – the reversal of Obama’s failed policies.

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