Before Obamacare foes made a big deal about consultant Jonathan Gruber's videotaped statement that Democrats capitalized on “the stupidity of the American voter” to win passage of the healthcare reform law, they made a big deal about his videotaped comment about who would and would not qualify for a federal premium subsidy.
Much was made of the remark by the Massachusetts Institute of Technology economist that “if you're a state and you don't set up an exchange, that means your citizens don't get their tax credits.”
Opponents of the law crowed that Gruber's statement confirmed the plaintiffs' argument in King v. Burwell, the legal case that will be decided by the U.S. Supreme Court next year, that the language of Patient Protection and Affordable Care Act does not allow subsidies in the 34 states which have not set up their own exchanges and instead use the federal exchange.
Let's put aside the fact that Gruber provided economic modeling and had no role in the actual drafting of the law. Let's also put aside the fact that the Democratic senators and congressmen who were the law's key authors—along with virtually everyone who observed the development and passage of the law—say the intention all along was to make subsidies available in all 50 states regardless of whether a state established its own exchange.
No one could plausibly call Gruber an authoritative source on the meaning or intent of the law's subsidy provisions.
Even if Gruber had written the law, his intent and interpretation should have no bearing on how the Supreme Court rules in the King case, according to no less an authority than Supreme Court Justice Antonin Scalia, the patron legal saint of conservatives. Legal textualists led by Scalia have spent decades persuading judges to look first to the language of statutes, rather than to legislative purpose or intent, in interpreting laws.
Scalia has insisted that courts' role is to adopt the interpretation that “does least violence to the text.” In a case earlier this year, he wrote that it is “the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Scalia's view, which many judges including most of his Supreme Court colleagues have embraced, is that it is generally wrong to go outside the four corners of the statute to decide the meaning of a law.
Gruber said during a congressional grilling Tuesday that his statement about subsidies and exchanges was taken out of context and that he had built his economic models based on the assumption that subsidies would be available in every state.
But who cares what Gruber says about the premium subsidies—or even what Obamacare authors Tom Harkin, Ron Wyden, Sander Levin, George Miller and Henry Waxman say. All that matters, according to Scalia, is what the law itself says. And that, as most of the federal judges who have ruled on the subsidy issue have written, is ambiguous.
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