‚??Where in the World is Carmen Sandiego?‚?Ě That phrase became seared in our collective memory, staring in 1985, with the release of the now-famous geography board game that later begat a popular PBS television series. It was followed by ‚??Where‚??s Wally?‚?Ě a book by British illustrator Martin Hanford about a distinctively dressed young man‚??renamed ‚??Waldo‚?Ě in the United States‚??who sets off on a world-wide hike. Readers were expected to find him hidden within each elaborately drawn image of his various travel stops.
Now we‚??ve got, ‚??Where in the world is Jonathan Gruber?‚?Ě
Politics is full of ‚??Where‚??s Waldo‚?Ě moments. Joseph Stalin famously reissued official photographs where images of companions or allies who had fallen out favor with the dictator had gone mysteriously missing. The recent curious absence of North Korea‚??s Kim Jung Un led to a mini-foreign policy crisis and to endless bouts of speculation as to his whereabouts.
Actors often disappear from the public sphere due to a change in the political climate.¬† Other times, they need a time-out to repair damaged egos or address unfortunate youthful indiscretions. But every once in a great while somebody, or something, unexpectedly goes missing without even the possibility of an explanation. Such an intentional omission that speaks volumes. And it happened a few weeks ago.
But first, some background.
The Obamacare insurance exchange rule is being challenged in four court cases.¬† My organization, the Competitive Enterprise Institute, is involved in two of them: King v. Burwell (which we lost in the Fourth Circuit) and Halbig v. Burwell (which we won in a 2-1 D.C. Circuit panel ruling). The legal fight is over an IRS rule that implements Obamacare subsidies, and their attendant penalties, nationwide‚??a policy contrary to the language of the statute, which provides for such subsidies only in states that have chosen to set up their own exchanges. To date, 34 states have declined to set up their own exchanges.
That‚??s where MIT Professor Jonathan Gruber comes in. A long-time advocate for and architect of the Affordable Care Act, he has been a continual presence in Obamacare-related government court filings, ¬†championing the interpretation of the law that Congress intended the IRS rule to apply to all who purchased insurance on a federal exchange, regardless of the state‚??s decision to participate in that exchange or not.
But in July, shortly after the D.C. and Fourth Circuits issued their rulings, we uncovered two video recordings of public speeches by Professor Gruber in which he clearly indicates that subsidies would not be made available to states that do not set up their own health insurance exchanges. Needless to say, this has been very helpful to us and to our arguments (and that of the majority in the Halbig decision). At first, Gruber called our position crazy, but he‚??s not calling us much these days (at least not publicly).
Then on September 30, there came a third court ruling, Oklahoma v. Burwell, echoing the Halbig decision, in which the Sooner State won its challenge to the IRS rule. And in this case, the judge‚??s opinion cites Gruber‚??s public statements as undercutting the government‚??s claim that Congress intended the subsidies to apply to all people in all states.
As my colleague Sam Kazman notes, this litigation now moves into the ‚??post-Gruber‚?Ě world:
[G]etting back to the government‚??s opposition to Supreme Court review of King‚??the one filed last Friday. It made the expected no-need-to-rush arguments about why the Court should wait until the D.C. Circuit finished its en banc review of Halbig; the issue itself supposedly didn‚??t require a quick resolution, and the en banc circuit might reverse the panel and thus eliminate the split with the Fourth Circuit.
But what stands out is what the brief did not do. It did not mention Jonathan Gruber at all. Gruber has been cited in every single previous government brief in King, and in the government‚??s major filings in Halbig. But in this latest document Gruber is gone. The same is true for the ‚??three-legged stool‚?Ě metaphor that he coined and the Economic Scholars amicus that he signed and that featured his work (and that the Halbig dissent heavily relied on). All of them are absent from the brief. Vanished. Verschwunden‚?¶
That‚??s gotta hurt. Not even a nice, ‚??Thank you for your help. Enjoy Thanksgiving on the banks of the Charles!‚?Ě
So, the D.C. Circuit may or may not eliminate the circuit split, but it certainly won‚??t eliminate the Jonathan Gruber split.
It‚??s the gift that keeps on giving. But I do not think the White House is amused.