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"Grubergate" Is Giving the Supreme Court Cover to Destroy Obamacare

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In an otherwise excellent exegesis of the ongoing controversy surrounding Jonathan Gruber, Vox’s Ezra Klein treats an infamous video in which the Obamacare adviser mocks the “stupidity of the American voter” as distinct from an earlier Gruber-related controversy, in which the MIT economist appeared to validate a legal challenge to the Affordable Care Act. The latter, in Klein's telling, is a genuine threat to the law, as it can be construed to vindicate the law's challengers, who claim that the Obama administration is illegally subsidizing insurance in states that didn't set up their own exchanges. The former, by contrast, merely affirms the right's suspicion that Obamacare is a symptom of liberal condescension to the ignorant masses.

But the controversies are actually conjoined, and the link between them explains why the right isn’t merely going to run Gruber’s name through the mud, but probably haul him in front of a congressional committee or two and recapitulate his sins every day until the Supreme Court determines the fate of the Affordable Care Act for a second time. The two Grubergates are being deployed together in service of a common goal. 

That goal is for the Supreme Court’s five conservatives to hobble the law without fear that their decision will be interpreted—correctly—as a spite-driven judicial logrolling of a statute conservatives hate. 

The greatest impact of the latest Gruber controversy, according to Commentary magazine’s Jonathan Tobin,” may be “on the Supreme Court’s decision in King v. Burwell, the lawsuit that alleges that federal subsidies given in states that don’t have their own insurance exchanges as mandated by the law are illegal. Gruber’s comments illustrate that the insistence on each state having one isn’t, as Paul Krugman alleged earlier this week, a mere 'typo' but a glaring flaw in the law that could sink the whole scheme.”

They actually illustrate no such thing. Gruber’s assertion that opacity provided ACA proponents with huge political advantages had nothing to do with the question of whether the ACA statute provides for subsidies in every state. In that narrow sense, Klein is correct that the Gruber controversies are unrelated. But Obamacare's opponents are blending the two episodes into one because together they establish motive, means, and opportunity—and thus a plausible excuse for conservatives to gut the ACA.

To do the right's bidding, the justices will need confidence that the public and the media won’t perceive an adverse ruling in King v. Burwell as unwarranted or out of the ordinary. Never mind that the ACA debate was, in reality, the most transparent legislative processes in the recent history of big Congressional action. One of the people who helped make it possible says the opposite. And it’s easier for the Court to do damage to an illegitimate law, or one built on a foundation of lies, than one that has achieved consensus.

The suggestion that the ACA benefitted from a lack of transparency actually serves the right in two ways. By reducing the public’s faith in the law, yes, but also by allowing conservatives to treat every controversy surrounding it as effectively insoluble. Whatever the law’s supporters and authors claim about the intent and meaning of the statute, the right no longer needs a fact-based response. They can instead deny the existence of a basic truth about the law because as Gruber suggests, the law was designed to hide the truth about itself. The scheme to compel states to set up their own exchanges was just another crude mechanism hidden within the text—and when it failed, the Obama administration pretended it never existed. 

Taken together, this provides conservative elites the narrative they know they’ll need to explain away a hugely controversial ruling.

That doesn’t mean the Court will reach that ruling. And it doesn’t mean the right alone is working the refs ahead of this case. But the claims the law’s supporters make about King—that it’s flimsy, that it’s a naked solicitation of judicial activism, that the stakes include the lives of people who have made irreversible treatment decisions based on a shared belief that their benefits were durable—are all true. For the most critical patients, the proposed bait and switch is akin to granting public land to worthy recipients without telling them the water supply's been poisoned.

By contrast, the right's bid for control over the narrative is based on mythos and false piety and, now, the idea that the law itself lacks legitimacy. The challengers' claims about the ACA’s meaning and intent are fabrications. Their appeals to humility are unctuous. And the law itself was hotly debated, passed by wide margins, signed, upheld by the Supreme Court, and ratified once again in a presidential election. It’s also working as intended. If Congress held every significant bill to the standards of openness that it applied to Obamacare, it would amount to a massive, massive increase in legislative transparency. That’s incontestable. And it makes the law as legitimate as laws get.