Jonathan Gruber, Bad Law Ethics, The Corruption Of Democracy, And The Affordable Care Act

"Oh what a tangled web we weave..." You know the rest of Sir Walter Scott's famous quote. So why doesn't the Obama Administration?

“Oh what a tangled web we weave…” You know the rest of Sir Walter Scott’s famous quote. So why doesn’t the Obama Administration?

There are important democratic lesson to be learned from the ongoing Obamacare Ethics Train Wreck, and we could discuss them objectively if the beleaguered supporters (enablers? excusers? rationalizers? propagandists?) of the law would just start accepting facts rather than resorting to dishonesty in all of its forms. The law is a mess. The law is a mess because its proponents in Congress passed it without reading it, because the public was deceived and misled in order to pass it, and because Congressional leaders and the President, in addition to not reading  major legislation that have massive consequences to the nation’s population, businesses, and budget, pushed it through without the usual two House scrutiny and amendment process.

Fixing the mess, or trying to fix it, has caused as many problems as the misbegotten law itself. (Please note that I am not discussing the intentions of the law, or what good things it might accomplish for Americans show needed help getting health insurance. That is beside the point. Good intentions don’t make a good law, or a bad law good. Look at the chaos at the border generated by the 2008 anti-human trafficking law, when it was mixed with irresponsible Democratic rhetoric and administration policies suggesting that illegal immigration restrictions were a thing of the past where children were concerned. Yes: many Americans have benefited from the Affordable Care Act. That fact alone, stated without reference to all the chaos, uncertainty, corruption, division and misrepresentations that accompany it, does not mean the law has been a success.)

The law depended on a penalty for not buying health insurance, a penalty that Democrats insisted was not a tax (so the President didn’t have to defend a large tax increase.) But a penalty for not doing what citizens should be free to do was unconstitutional, so Chief Justice John Roberts, in the spirit of avoiding government by judge, allowed the ACA to slip by in a 5-4 decision by declaring that the mandate was a tax, regardless of what it had been called to get it passed, and thus was constitutional after all.

Then the President began delaying deadlines and waiving provisions in the law that weren’t ready to go into effect or that were obviously going to cause more embarrassments. This was an abuse of power: Presidents can’t change laws by fiat. It established a dangerous precedent that undermines Constitutional democracy and the Separation of Powers. But it’s a bad law, and an unpopular law; the Republican House obviously won’t agree to the fixes needed without also doing a major overhaul, and this is, in the ironic words we keep hearing, most recently by the New York Times, Present Obama’s “most significant legislative achievement“—how sad is that?—and must be preserved at all costs.

At all costs. So far the costs of the ACA have been complete partisan polarization, the public’s realization that the President who pledged “transparency” will lie repeatedly to get his way, judicial rescue or dubious validity, and the defiance of the lawmaking procedures delineated by the Constitution. And the ethics train wreck goes on.

In Halbig v. Burwell, the US Court of Appeals for the DC Circuit ruled that those who purchase health insurance under the Affordable Care Act are only eligible for federal tax credits if they do so through an exchange established by a state.  (Another court ruled otherwise.) The court did this because this is what the miserably drafted, rushed, never-read by its own champions actually says, stating that tax credits are only available to those who purchase insurance in an “[e]xchange established by the State.” Obama-propping pundits, Democratic officials and the Administration’s spokespersons have attacked and indeed ridiculed the decision, saying that he court should have refused to enforce the actual wording of the law because it creates an absurd result. After all, the ACA’s stated goal is to expanding access to health insurance. Why would Congress try to limit it in this fashion—I mean, other than the fact that they had no idea what the law they were voting for actually had in it, just a general idea about what it was supposed to do?

This was the drumbeat in the wake of Halbig—mockery. Then videotape surfaced–damn you, YouTube!—showing that in 2012, the man often called the architect of Obamacare, former health policy advisor Jonathan Gruber, made public statements that contradict the assertions the Administration is now making in court as it argues that Congress “obviously”  intended for the insurance subsidies to be available nationwide, in all states, regardless of whether they had a federal or state-run exchange. For Gruber, a professor of economics at the Massachusetts Institute of Technology, said at a conference in 2012 that consumers could not obtain insurance subsidies under the health care law if they lived in states that refused to establish their own insurance exchanges. If states don’t set up their own exchanges, their citizens can’t get the subsidies, he said, and this was intentionally in the law to encourage/force/pressure states to get with the program, just as other federal programs provide incentives for “cooperative Federalism”...

“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.”

Gruber repeated this theme elsewhere, as did an Administration fact-sheet in 2011. Now the administration-biased media’s flacks, Gruber and others are spinning, lying and rationalizing like mad trying to avoid admitting the truth: the law, for better or worse, was written to mean what it said. Like so many other parts of the ACA (and many we don’t know about yet–count on it) the darn thing just didn’t work out the way it was supposed to.

If only someone had read it!

Here’s 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.” In anther places, he has described the statement as a “speak-o,” the verbal equivalent of a typo. How despicably disingenuous. The remarks were clear and repeated elsewhere, by him, without notice or correction. Something does not retroactively become a “mistake” and a “speak-o” when the statement was completely intentional, just because later on the position is no longer viable. Now here is Jay Carney’s replacement, Josh Earnest, showing that he is as adept at deceit as his predecessor:

“[Gruber’s] views on this are pretty clear. I think that he described those remarks as a mistake. But I’d refer you to his explanation for why he said them. I think what is clear is that he, like Congress, intended for every eligible American to have access to tax credits that lower their health care costs, regardless of who is operating their marketplace.”

Brilliant deceit! Law Professor-blogger Ann Althouse explains…

The Press Secretary Earnest isn’t lying, but if you look closely at each of his remarks, you can see that he seems to know he’s making a series of technically true statements* that avoid asserting that Gruber is telling the truth now when he calls the 2012 remarks “a mistake.” 1. Gruber’s “views… are pretty clear.” Check. 2. Gruber called his remarks “a mistake.” Absolutely true. That’s exactly what Gruber said. 3. Gruber’s overarching goal has been to get health insurance tax credits to people. Again, Earnest is correct —cagily correct — because lying now about making a mistake back then is exactly what serves that overarching goal, just as saying what he said in 2012 served that goal.

She also correctly diagnoses what Gruber is doing:

The inconsistency between what Gruber said in the friend-of-the-court briefs in the current litigation and what he said in 2012 doesn’t persuade me that he “made a mistake” back then. In 2012, the effort was to pressure and frighten the politicians in the various states so that they would set up the exchanges. Now, after so many states resisted that pressure, the effort is to preserve the federal exchanges that were set up. At both points in time, Gruber said what served the goals of the program…Lying is a means to an end, and one can steadfastly adhere to one’s end while changing your statements as needed to serve that end. That’s what liars do! To justify their behavior by pointing to their dedication to a single end is only to explain the motivation to lie. Yet that’s what Josh Earnest expects us to swallow.

Do you see how corrupting it all is? This incompetently drafted, dishonestly sold, undemocratically passed, miserably administered—but so well intentioned! (“How can we keep losing when we are so sincere??”Charlie Brown)— continues to force everyone trying to salvage it into more lies, more deceit, more undemocratic maneuvers, doing possibly permanent to the public trust, the political system, the balance of powers and Constitutional government. It all is because the supporters of health care reform refused to follow the rules laid out in our founding document, refused  to observe traditional legislative process, refused to be transparent, and didn’t apply the minimum diligence, competence and care necessary to avoid getting a bad law, and that’s exactly what they got.

Every single action taken to make that bad law work as it was supposed to in theory will further degrade and corrupt the system except one: sending it back to Congress to fix, and actually be read this time by the officials voting for it.  That’s the way the Constitution dictates that laws be changed. And if the result is that Obama’s major “achievement”—a hopelessly botched law (but so well intentioned!) goes down in flames? It will be worth it…as long as the simple but vital democratic lesson is learned by future leaders.

Pass laws the way they are supposed to be passed,

or don’t pass them at all.

*NOTE:  “technically true statements” designed to mislead, as these are, are the definition of deceit.


Sources: Newsbusters,  Althouse 1,2; Washington Post (Volokh), New York Times, Politico

26 thoughts on “Jonathan Gruber, Bad Law Ethics, The Corruption Of Democracy, And The Affordable Care Act

  1. What would you do if the system slipped so far that a president with one friendly house and the other opposition held arbitrarily began enforcing bills passed by the friendly house but not by the other?

  2. I know the trainwreck is a nice explosive image, but this is more like a swamp sucking us down into it. I still admire the intention if not the result.

  3. Ethics Thresher. The Lusitania and the Titanic were sunk by outside forces. The Thresher went down because of a faulty internal weld.

  4. Ethics quicksand? Ethics sucking chest wound? Ethics quagmire? Ethics roadkill? Ethics chum? Ethics jungle? Ethics desert? Ethics vacancy?

  5. Should you add the whole fiasco with it not being a revenue bill for Origination Clause purposes, but it does for Consitutionality? The news coverage I saw said the judges based the ruling on the fact that the House didn’t complain about the bill nor complying with the Origination Clause at the time of passage, but the bill wasn’t ruled a tax bill until later…

    • It technically did. That was why the Senate took a bill that had originated in the house and amended it by replacing the original text with the full text of Obamacare. It should have been ruled unconstitutional on those grounds, but I don’t recall if it was actually raised as an argument to the court.

      • This still leaves the court reasoning as “The law is constitutional ONLY under the government’s power to tax AND the revenue portion of the bill is insignificant and doesn’t make it revenue legislation”. I wonder why we are getting disillusioned with the government.

        • 1) We are no longer taught the Constitution, nor are we taught why we even have a Constitution (Social Contract), nor are we taught why we put into the Constitution what we put into the Constitution (Federalist Papers, Federalism, Limited power, Rights, etc)

          2) We are taught by pop culture we have a vast claim to rights that we never have had nor ever should, in fact they aren’t even rights other than called so by activists.

          3) We are subtly taught via the Media and Big Education a false notion of how our government works.

          4) When the government doesn’t accomplish what Leftists want #2, placed against the false backdrop of #3, the general populace believes there is something dreadfully wrong with our Government and that it must be getting derailed by some evil miscreant force. Then the general populace becomes disillusioned with our government.

  6. Perhaps in our search to describe the ethics trainwreck involving incompetence, arrogance, inflexibility, disdain for the system and for the culture in general we realize we need a whole new word.

    Perhaps the president could lend his name to an appropriate measure that describes the above.

    For example, the launching of the Titanic with insufficient life boats may rate .14 obama. The vision of attacking at Gallipoli may rate .45 obama. The President’s own term of office may rate several dozen obamas.

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