Charles C. W. Cooke summarizes the increasing embarrassment that the Obama administration is facing in trying to argue that the wording in the Affordable Care Act that limited federal subsidies only to states that established their own exchanges was just a typo. Jonathan Gruber, the MIT economist regarded by many as the architect of Obamacare has been making that argument since the Halbig decision. But now video and audio have surfaced from 2012 with Gruber giving speeches telling people that states are going to want to establish their own exchanges because they won't get subsidies.
The federal government has been sort of slow in putting out its backstop, I think partly because they want to sort of squeeze the states to do it. I think 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’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, and that they’ll do it.That's just what the lawyers for Halbig have been arguing - that the law was deliberately written to deny subsidies to states without exchanges as a stick to force states to establish those exchanges. It was no typo or grammar mistake; it was deliberate. Gruber tried to defend himself by saying it was a "speak-o" and that he misspoke back in 2012. But apparently, Gruber made that "speak-o" at least twice. He is not a stupid man. This was clearly part of the arguments in favor of Obamacare that he was making in his speeches back then.
I have a suggestion for those people with more time to research this or some journalist who wanted a scoop, but I would recommend people look back to 2012 when governors were making decisions whether or not to set up their own health exchange or to rely on the federal exchanges. There was a period that I remember when one or two governors announced they weren't going to have their own exchanges and then it was like a row of dominos as more and more states made that decision. I suspect that, at some point when these decisions were being made, that people from HHS would have talked to those governors or legislators and reminded them that their citizens weren't going to get those subsidies. This was obviously the plan, as Gruber was speaking about in his speeches. Call those governors and ask them if they received any such communication from HHS or if any Democrats in their state or elsewhere made that point. Maybe no one mentioned that, but it seems to make sense that, if the denial of subsidies was planned as a stick to move the states in one direction, someone would have wielded that stick at some point.
Charles C. W. Cooke explains why all this really matters. It's much bigger than deciding the fate of Obamacare.
Those of us who have been critical of Obamacare’s endless textual invitations to leave the details of national policy up “the secretary” have often referred to the law as an “enabling act” — as a perilous general warrant that transfers the prerogatives of Congress to the executive branch and substitutes for the codified work of citizen-approved legislators the transient whims of a haughty mandarin class. Little did we know just how appropriate our critique would become. There being nothing in America’s constitutional settlement that permits a president to recast the rules if they prove electorally inconvenient for him, the Obama administration’s repeated rewriting of the law has been vexing enough in isolation. Far worse, however, is that in the eyes of the expansionist Left, Obamacare seems not to represent a limited series of binding and meaningful words on a page — there to be implemented within the usual bounds of discretion — but a holistic permission slip for its aims. Increasingly, its defenders’ arguments are boiling down to “but this is a good idea,” an approach that renders Obamacare little more than a shell into which good intentions can be poured without limit and that cannot legitimately be resisted — not by Congress, not by the states, and not even by the courts. “Sure,” the attitude dictates, “it doesn’t say we can do that explicitly. But all right-thinking people believe we should.” “Yes,” say the foot soldiers, “this was fought over tooth and nail and passed in extreme circumstances. But the intent of the good guys should prevail nonetheless.” Meanwhile, anyone who pushes back is met with the same mawkish, manipulative cry: “Are you really going to take away from people what we have now given them?”Kimberley Strassel reports on how the IRS rule came about saying that all the states would get federal subsidies despite what the actual text of the law said. Originally, the IRS had decided otherwise because they, you know, read the law. But then the political appointees in the administration put pressure on the IRS and lo and behold, they changed their minds.
The answer to this question should be a resounding “yes.” Yes, if you had no authority to give out favors in the first instance. Yes, if you insist upon behaving with no regard for memory or for history. Yes, if you are determined to hijack the system and ride roughshod over the consent of the governed. “Facts do not cease to exist because they are ignored,” Aldous Huxley once wrote. The rule of law, neither. Reality is not optional, and power is not its arbiter — whatever our celebrated experts might find it convenient to forget.
We know this thanks to a largely overlooked joint investigation and February report by the House Oversight and Ways and Means committees into the history of the IRS subsidy rule. We know that in the late summer of 2010, after ObamaCare was signed into law, the IRS assembled a working group—made up of career IRS and Treasury employees—to develop regulations around ObamaCare subsidies. And we know that this working group initially decided to follow the text of the law. An early draft of its rule about subsidies explained that they were for "Exchanges established by the State."It used to alarm people when they saw a president politicizing the IRS. Now it's SOP for the Democrats.
Yet in March 2011, Emily McMahon, the acting assistant secretary for tax policy at the Treasury Department (a political hire), saw a news article that noted a growing legal focus on the meaning of that text. She forwarded it to the working group, which in turn decided to elevate the issue—according to Congress's report—to "senior IRS and Treasury officials." The office of the IRS chief counsel—one of two positions appointed by the president—drafted a memo telling the group that it should read the text to mean that everyone, in every exchange, got subsidies. At some point between March 10 and March 15, 2011, the reference to "Exchanges established by the State" disappeared from the draft rule.
Emails viewed by congressional investigators nonetheless showed that Treasury and the IRS remained worried they were breaking the law. An email exchange between Treasury employees in the spring of 2011 expressed concern that they had no statutory authority to deem a federally run exchange the equivalent of a state-run exchange.
Yet rather than engage in a basic legal analysis—a core duty of an agency charged with tax laws—the IRS instead set about obtaining cover for its predetermined political goal. A March 27, 2011, email has IRS employees asking HHS political hires to cover the tax agency's backside by issuing its own rule deeming HHS-run exchanges to be state-run exchanges. HHS did so in July 2011. One month later the IRS rushed out its own rule—providing subsidies for all.
That proposed rule was criticized by dozens of scholars and congressional members, all telling the IRS it had a big legal problem. Yet again, the IRS did no legal analysis. It instead brought in a former aide to Democratic Rep. Lloyd Doggett, whose job appeared to be to gin up an after-the-fact defense of the IRS's actions. The agency formalized its rule in May 2012.
To summarize: The IRS (famed for nitpicking and prosecuting the tax law), chose to authorize hundreds of billions of illegal subsidies without having performed a smidgen of legal due diligence, and did so at the direction of political taskmasters. The agency's actions provided aid and comfort to elected Democrats, even as it disenfranchised millions of Americans who voted in their states to reject state-run exchanges. And Treasury knows how ugly this looks, which is why it initially stonewalled Congress in its investigation—at first refusing to give documents to investigators, and redacting large portions of the information.
Administration officials will continue to use the IRS to try to improve its political fortunes. The subsidy shenanigans are merely one example. Add Democrats' hijacking of the agency to target and silence political opponents. What you begin to see are the makings of a Washington agency—a body with the power to harass, to collect, to fine, to imprison—working on behalf of one political party. Richard Nixon, eat your heart out.
George Will writes about why the GOP might have a winning Senate candidate in Oregon.
Turnabout is fair play. After two presidential cycles when the Democrats hung antipathy to George W. Bush around the GOP candidates, now Hillary will find herself portrayed as running for the third term of Barack Obama. She is going to have to defend his policies, particularly in foreign policy. She already is getting those questions and having to defend him. She might try to sell herself as the third term of Bill Clinton's presidency, but she won't be able to escape Obama's record. That must really burn her.
Hillary Clinton keeps up her argument that Americans need to do a better job of selling ourselves to the rest of the world. And then she goes to say that George W. Bush's efforts fighting HIV/AIDS in sub-Saharan Africa make her proud to be an American. The implication she leaves is that that is no longer true for Americans today. Hmmm. And who was the Secretary of State whose main accomplishment was traveling to more countries than any previous Secretary of State? Why weren't her four years in office that just ended a year and a half ago more successful in selling the image of the United States?
Now who would expect this? People are getting angry when they find out that they're paying more and getting less for their health insurance due to Obamacare.
Chelsea Clinton has tried to have it both ways - refusing to talk to the media sometimes and then trying to get all sorts of publicity and a job in the media other times. And for someone with two advanced degrees in fields in which she never had a job, she seemed to luck her way into jobs with six-figure salaries and for which she had no experience whatsoever. It sounds like the perfect preparation for her to run for high political office.
A plagiarism scandal now hits BuzzFeed. When will people learn how easy plagiarism is to catch these days?
Jazz Shaw points out how the income of Michigan workers has actually risen despite (or because) its becoming a right-to-work state.
This is depressing. Literally. The typical household is now worth a third less than it was a decade ago.
If your movie ticket gets more expensive, blame the ADA and the DOJ. Or just stay home and wait for the movie to come to Netflix.
Dave Barry gives his take on Fifty Shades of Grey. Very funny.