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On Thursday, a libertarian think tank surfaced 2012 footage of Jonathan Gruber, MIT economist and chief architect of the health reform law, allegedly acknowledging the issue at the heart of the court cases: whether subsidies are available in federally-run insurance exchanges.
"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," Gruber said during a lecture in January 2012.
What did Gruber mean when he said that? The economist spoke with Jonathan Cohn, a senior editor at The New Republic, about the clip on Friday morning. He told Cohn that the remarks were a "mistake" made while "speaking off-the-cuff." Here is the key bit from Gruber:
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 ...
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-o—you know, like a typo.
I didn’t assume every state would set up its own exchanges but I assumed that subsidies would be available in every state.
Though the controversy over what Gruber said — and what he did or didn't mean by what he said — has been newsy and potentially embarrassing, it's not actually very consequential, legally. Courts put much more stock in the words that Congress chose when enacting the law, and the context in which Congress put those words, than what people say about the law.
While Gruber was certainly a key advisor during the Obamacare debate, he was not a member of Congress who voted to pass the actual law. And that likely gives his words less weight than those of legislators in front of the courts.
