A video surfaced by Ryan Radia of the Competitive Enterprise Institute shows Jonathan Gruber, a chief architect of Obamacare and its predecessor in Massachusetts, acknowledging the problem at the center of the reform law's most recent lawsuits in January of 2012.
At issue is whether the text of the law permits subsidies to purchase insurance on federally-run exchanges. A particularly contentious part of this debate is trying to figure out what Congress intended, as far as that can be inferred from the legislative history and text of the health law itself.
The relevant part of the video starts at 31:25:
What Gruber suggests at that point in the video is that the health insurance subsidies should only be available in states that opt to build insurance marketplaces, as a way of winning over their participation. Here's the relevant quote:
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. But you know, once again, the politics can get ugly around this.
On Friday afternoon, John Sexton of Breitbart News published similar audio from another speaking engagement in January 2012.
Gruber addressed the first video Friday morning in an interview with the New Republic's Jonathan Cohn, where he described his remarks as a mistake when he was "speaking off-the-cuff."
Appearing on Hardball earlier this week, Gruber characterized the Obamacare passage at issue in the lawsuits as a "typo." Peter Suderman highlighted his particularly relevant remarks then:
Earlier this week, Gruber was on MNSBC to address the Halbig 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 states."
Michael Cannon, director of health policy at the Cato Institute and long-time champion of this legal challenge, offered the following comment on his blog regarding the video: "Gruber is not a member of Congress, so this isn’t direct evidence that Congress intended to offer tax credits only in state-established Exchanges. (The procedural path the bill took through Congress is dispositive evidence of that.) But he may be the next best thing."
Gruber worked closely with the White House to devise Obamacare's landmark health law. He also helped Congressional staff with some of the drafting. But he's still not Congress, so it wouldn't be accurate to read this as proof-positive that legislators intended to withhold subsidies from people on federal exchanges.
"I don’t mean to overstate the importance of this revelation," Cannon added. "Gruber acknowledging this feature of the law is not direct evidence of congressional intent."