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Evidence framers of Obamacare intended to deny subsidies to federal exchanges

Former Senator Max Baucus
Former Senator Max Baucus
Photo by Feng Li/Getty Images

One of the fiercest debates over Obamacare was sparked by the recent Halbig v Sebelius decision that invalidated subsides for health insurance bought under the federal Obamacare exchanges, noting that the letter of the law states that they are only available under state run exchanges, notes a Friday USA Today piece. Opponents of the decision claim that Congress “intended” that subsidies be available under Healthcare.gov. But evidence is mounting that the architects of the law intended no such thing.

MIT economist Jonathan Gruber is one of the primary fathers of the Affordable Care Act. Currently he is attacking Halbig as a flawed decision, claiming that Congress always intended to offer people on the federal exchanges under Healthcare.gov subsidies. But in a 2012 speech he took the exact opposite position.

“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.”

Gruber made the same claim in a separate speech around the same time. The intent was clearly to intimidate he states into setting up exchanges. No one in Washington anticipated that the most of the states would refuse to be intimidate and would refuse to cooperate. Gruber is now claiming that he misspoke about the Obamacare law, twice it appears.

Politically this is a nuclear bomb going off. Legally, it could be so argued, what is important is Congressional intent, not that of a private citizen, no matter how intimately involved he was in the development of the Obamacare law. But now a video has surfaced of then Sen. Max Baucus, D-MT, who introduced the original version of the Affordable Care Act, saying much the same thing as Gruber during a debate in committee.

Then House Speaker Nancy Pelosi famously said that Congress has to pass the Obamacare bill to see what was in it. Years later we are finding out that Congress rammed through a bill on a partisan vote that no one had read through dodgy procedural rules. The question arises, will the Supreme Court rescue the Affordable Care Act through legal gymnastics or will it bury it once and for all?