Thursday, July 24

New meme on Obamacare and the appeals court slapdown: it's all due to a "drafting error" in the ACA's language!

[This post is long but goes in a *much* different direction about half-way through.  Bear with me.  You'll be...surprised.  Or maybe shocked.]

Team Obama and the Democrats have digested this week's court ruling that the plain language of the actual Obamacare law only permitted subsidies for people who signed up on state exchanges.  And they've huddled with their Media allies and devised the strategy to defeat this ruling and get their way.

And it is:  "The bill's language is a drafting error."

And instantly, as if by magic, every lefty website and pundit and talking head was tweeting things like
Republicans are trying to take away health insurance from millions based on a drafting error" (Salon)
 and
Pity the staffer who made the drafting error in the ACA that led to the Halbig ruling. (Blake Hounshell)
 and
Some folks would really love it if millions of folks lost their insurance subsidies next year over a drafting error. (Brian Beutler)
Of course as actual attorneys have pointed out, the language makes clear that it was NOT a drafting error, but why should the Left let mere facts prevent them from keeping their new power?  So you can expect an avalanche of similar comments in the next few weeks.

The Left needs to sell the "it was a drafting error" story to make an expected Supreme Court decision more plausible.  Otherwise the court would only be able to support Team Obama by doing some kind of weird inversion like "The 'mandate' in Obamacare is constitutional because it's a tax, even though the government's own lawyers argued it was actually a penalty" or some such equally ridiculous bullshit.

Oh, wait...the Supreme Court--justice Roberts--already did that.  It was clunky but the public bought it.  This time the media wants to do a better job "preparing the ground" for the decision they want.

To understand how totally you've been conned, you need to see just how the clear, plain language of the actual law--clearly stating that subsidies or credits were available only to people who joined "state exchanges"--was completely reversed, to accomplish the goal sought by the Left.  It's a classic con.

Most laws contain language to the effect that "Agency X will develop and promulgate rules to enact the language of this bill."  Sometimes Agency X actually does enact "the language of the bill," but often bureaucrats insert their own interpretation of what they claim Congress intended by using a certain phrase.

So for example in Section 1411 of the ACA--titled "Refundable credit for coverage under a qualified health plan"--we find the "Premium assistance amount" to be "the lesser of...the premiums for one or more qualified health plans offered...within a state...which were enrolled through an Exchange established by the State..."

This language was included as a huge incentive to the 50 states to create their own State exchanges.  Doing so would take most of the heat and workload off the federal government.

But as the start date got closer and only a dozen or so states had agreed to create their own state health-care "exchanges," Team Obama realized that under the actual language of section 1411, 70 percent of Americans wouldn't be eligible for subsidies or credits.

Oooh, what to do, what to dooooo?  Solution!  Have the IRS propose a "federal rule" stating that when the ACA said "premium assistance" was only available to people who enrolled through State exchanges, what it really meant was nothing of the sort.  Instead the IRS would claim that what congress really meant was that everyone would receive the subsidies/credits.

Wow, that just instantly got a LOT sweeter, eh?  Pretty cool how the IRS--obviously acting at the direct order of Barack Obozo--could just rewrite the clear language of the *law*, eh?

Of course if they'd done this in an obvious way someone would have sued, so they had to do this total re-write in two stages:  First was a "Notice of Proposed Rulemaking," on August 11, 2011.  The relevant portion--buried in 19 pages of incredibly dense, barely comprehensible bureau-BULLSHIT--states
Explanation of Provisions 
1. Eligibility for the Premium Tax Credit
The proposed regulations provide that
a taxpayer is eligible for the credit for
a taxable year if the taxpayer is an
applicable taxpayer and the taxpayer or
a member of the taxpayer’s family (1) is
enrolled in one or more qualified health
plans through an Exchange established
under section 1311 or 1321
of the
Affordable Care Act (42 U.S.C. 13031 or
42 U.S.C. 18041)
You don't see any bombshells in there, right?  That's because politicians know that no one will ever bother actually finding and reading the references to the text of the ACA.  But in fact the proposed regulation totally changed the law so that now everyone would get credits or subsidies, regardless of what type of exchange they joined.

Sections 1311 and 1321 direct the states to establish "health-care exchanges," but then immediately say that if a state chooses not to, or if the feds determine their exchange doesn't satisfy all the requirements of the 2,409-page act, the federal gummint will establish a *federal* exchange.  But the section that actually deals with subsidies or credits is 1411.  You can find this buried on page 238 (of a mere 2,409) at lines 8-26.

Not one of you will go check that out for yourself--which is fair enough, because we foolishly think our reps and senators and their 5000-plus staffers--with their gargantuan salaries and retirement benefits--will do that FOR us.  At least that's what we're paying 'em to do, and what they *should* do. Otherwise what the fuck are we paying their enormous salaries and golden pensions for, eh?

At any rate, seven months after the "proposed rulemaking" was published, the IRS issued the "final rule" arising from their proposal.  The following innocuous 'graf is the one that does the dirtywork:
   Under the proposed regulations, the
term Exchange has the same meaning as
in 45 CFR 155.20, which provides that
the term Exchange refers to a State
Exchange, regional Exchange, subsidiary
Exchange, and Federally-facilitated
Exchange.
Doesn't look like a big deal, eh?  But notice that the IRS has simply *declared* that "the term Exchange [a "term of art" in the Affordable Care Act] has the same meaning as in 45 CFR 155.20..." without saying what that means--or how that was determined. Note also that the reference they gave is NOT to the law itself but to the CFR (Code of Federal Regulations). This provides an extra layer of disconnect between the language in the actual LAW and what they just did--which was to rewrite one of the act's key provisions to do what Emperor Obama wanted.
   Commentators disagreed on whether
the language in section 36B(b)(2)(A)
limits the availability of the premium
tax credit only to taxpayers who enroll
in qualified health plans on State
Exchanges.
   The statutory language of section 36B
and other provisions of the Affordable
Care Act support the interpretation that
credits are available to taxpayers who
obtain coverage through a State
Exchange, regional Exchange, subsidiary
Exchange, and the Federally-facilitated
Exchange. Moreover, the relevant
legislative history does not demonstrate
that Congress intended to limit the
premium tax credit to State Exchanges.
Notice how cleverly this is phrased: "The legislative history does NOT demonstrate that Congress intended to limit..." Yeah, it also doesn't demonstrate that Congress intended to limit your right to marry a goat, so we hereby declare that you have that right.  Uh-huh. There are lots of things the legislative history doesn't touch on--and of course none of those unmentioned things has the slightest bearing on what the IRS could declare to be the law, let alone mandatory.
   Accordingly, the final regulations
maintain the rule in the proposed
regulations because it is consistent with
the language, purpose, and structure of
section 36B and the Affordable Care Act
as a whole.
So...faced with a situation they didn't anticipate--only 14 states setting up health "exchanges" despite the obvious carrot that this was how their residents would get the credits or subsidies--Democrats simply used the agency rule-making bullshit to interpret the law in a way that let them get what they wanted.  'We declare our version is consistent with the language and purpose of the Act as a whole.'

Slick, huh.  And this happens *all the time.*

Oh, one more thing:  All this whining about "a drafting error"?  Note that when the government argued the Halbig case before the D.C. court of appeals, Team Obama's attorneys did not mention--not once--the new, hot claim that the language was a drafting error.

Gee, wonder why not?
====
[Here's where it gets a LOT more exciting.]

UPDATE:  One of the main architects of Obamacare was a guy named Jonathan Gruber.  How much of a role did he have?  Well, Team Obama paid him $400,000 as a consultant, and he claims to have written a portion of the law's language.  Also he was the architect of Massachusetts' mandatory health-insurance law, which is widely considered to be the model for the ACA.

Two years ago Gruber said this about the tax credits or premium subsidies in the ACA:
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.
That couldn't possibly be any clearer:  One of the main architects of the bill clearly says that if a state didn't set up a State health-care "exchange" its citizens wouldn't get the tax credit.  And he's on video saying this.

But just one year later, after lawsuits were filed claiming the law said exactly what Gruber claimed just a year earlier, Gruber reversed his position, telling the liberal magazine Mother Jones that the theory advanced by the plaintiffs that subsidies or credits were only available to those enrolled in State exchanges, was "nutty."

Wow.  That's some serious lyin'.  I'd love to see this pencil-dick under oath, asked which of his statements was true--and why he made the absolute opposite statement..

Gruber also signed an amicus brief supporting Team Obama and the IRS declaration that everyone could get credits.

Click here to get to a long video of Gruber in 2012 (relevant part starts at 31:20).  The video clearly shows  that in 2012, not only did Gruber say exactly what the plaintiffs are claiming the law says and intended, but that his subsequent reversal is utter lying and bullshit.  But exactly what we've come to expect from Team Obama and his loyal Democrats--on every topic.

This video evidence is so utterly damning to Gruber that one wonders how arrogant or irrational this asshole must be to think he could claim his original statement on the law's effect was "nutty" without anyone ever discovering it.

Not that he'd need to worry if the reversal was discovered, of course, since the Lying Media would never mention it and Team Obama would see to it that he would never suffer a legal sanction.

Again, it's become all too typical.

Earlier this week Gruber doubled down, appearing on MNSBC to address the recent court ruling. He was asked if the language limiting subsidies to state-run exchanges was a typo. His response:
It is unambiguous this is a typo. 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 exchanges.
But again, look at his statement on the video from 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.
Were you lying then, or are you lying now, Mr. Gruber?

Update:  Gruber explains.  You know how libs are claiming the working of the ACA was a typo?  Meet the never-before-seen cousin of the typo:  The "speak-o." This morning Gruber told the New Republic that he doesn't know why he said in 2012 that Americans wouldn't get tax credits if their state didn't set up an Exchange. "I was speaking off-the-cuff. It was just a mistake," he said.  "My subsequent statement [sic] was just a speak-oyou know, like a typo."

A typo is usually a simple slip of the finger on the keyboard, i.e. a misspelling or missed bit of punctuation. Gruber's videotaped statement from 2012 is nearly a minute long.

Update #3: This Gruber character is the gift that keeps on giving.  You know that minute-long videotaped answer that he bizarrely called a "speak-o"?  Turns out that a week or so later he was recorded giving a *second* speech--to a Jewish center in California, I think--in which he again refers to the critical role of State exchanges, and how if a state doesn't set one up, "its citizens will lose millions and billions of dollars."

Here's the audio:



The part about state residents losing money if their state doesn't set up an exchange starts around 0:52.  Here's what he says:
When the voters in states see that by not setting up an exchange, the politicians in that state are costing state residents hundreds of millions and billions of dollars, that they'll eventually throw the guys out.

And that is really the ultimate threat, is will people understand that, gee, if your governor doesn't set up an exchange you're losing hundreds of millions of dollars of tax credits to be delivered to your citizens.
So he explicitly ties not setting up a state exchange to costing residents of that state "hundreds of millions of dollars of tax credits."   How can this be a "slip of the tongue"--or as this asshole slyly puts it, a "speak-o"?

It's also crucial that while the video clip was in answer to a question from the audience--and thus Gruber could claim he misunderstood--the audio clip was part of his prepared remarks.

How do you mis-speak when reading your own prepared remarks?

Well let's see how this great thinker explains himself, as we read his explanation to the left-wing mag The New Republic: 
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.
During this era, at this time, the federal government was trying to encourage as many states as possible to set up their exchanges. ... 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-oyou know, like a typo.
There are few people who worked as closely with Obama administration and Congress as I did, and at no point was it ever even implied that there’d be differential tax credits based on whether the states set up their own exchange. And that was the basis of all the modeling I did, and that was the basis of any sensible analysis of this law that’s been done by any expert, left and right. 
I didn’t assume every state would set up its own exchanges but I assumed that subsidies would be available in every state. It was never contemplated by anybody who modeled or worked on this law that availability of subsides would be conditional of who ran the exchanges.
Now compare the three quotes in red above with Gruber saying exactly, specifically the opposite in January of 2012.

Lying, lying, lying son of a fucking bitch.  Dead to rights.  And yet he keeps maintaining "there was never any intention...", "at no point was it ever even implied that there'd be differential credits..." and "It was never contemplated by anybody that..."

Again, I think it's fascinating that this guy has doubled-down on "never contemplated" when his own words not only contemplated but threatened the witholding of premium tax credis.  It's hard to imagine his mind-set in thinking he can get away with this.  I can only hope that some competent courtroom attorney calls this guy as a witness and cuts him to ribbons on the stand.

I'd pay good money to see how the guy denies his taped comments--on not one but two occasions-- when he's being cross-examined instead of questioned by a sympathetic leftist interviewer.

Okay, one more update and then I've gotta quit:  After listening to the audio clip confirming the earlier video, MSNBC's Adam Serwer emailed Gruber and asked him about the second clip: Was it also  "speak-o"?

Gruber's reply: "Same answer."  That is, he's claiming he made the exact same, long-duration "slip of the tongue" twice, on separate occasions.

But lest you think MSNBC has gotten some brains, Serwer then writes a dozen paragraphs arguing that Gruber's opinion should carry no weight at all, and that the language of the bill doesn't mean what it says.  Instead, this is all just a sinister plot to destroy Obamacare.

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