- The Washington Times - Thursday, November 13, 2014

For years, Massachusetts Institute of Technology professor Jonathan Gruber was deemed an architect of Obamacare and his economic modeling was cited regularly by the health care law’s defenders on Capitol Hill and in legal briefs defending the Affordable Care Act in federal courts.

But after tapes surfaced of the economist saying “stupid” voters needed to be bamboozled and the books cooked to get the legislation passed in 2010, Democrats are scrambling to reduce Mr. Gruber to a bit player — and raising questions about whether he needs to be expunged from their defense strategy as they face yet another Supreme Court review.

House Minority Leader Nancy Pelosi, who as speaker in 2009 posted an Obamacare “myth buster” citing Mr. Gruber, vehemently distanced herself from him Thursday.

“I don’t who he is. He didn’t help write our bill,” she said, but added that Mr. Gruber’s comments were a year old and he had recanted them.

In the comments that have just come to light, Mr. Gruber said the health care bill was written in a “tortured” way to ensure the Congressional Budget Office didn’t score the individual mandate as a tax, even though the U.S. Supreme Court ultimately upheld the mandate as constitutional under Congress’ taxing power.

“Lack of transparency is a huge political advantage,” Mr. Gruber said at the time. “And basically, call it the stupidity of the American voter or whatever, but basically that was really, really critical to get the thing to pass.”

SEE ALSO: EDITORIAL: Jonathan Gruber’s payday

Mr. Gruber said this week that he regretted the remarks. But House Speaker John A. Boehner, Ohio Republican, said Thursday that American voters are “anything but stupid” and oppose the health care system’s overhaul for valid reasons.

Mitch McConnell, the Kentucky Republican selected as the next Senate majority leader, said Mr. Gruber made a classic “Washington gaffe — when a politician mistakenly tells you what he really thinks.”

However, Mr. Gruber’s explanation in 2012 of how Obamacare’s subsidies should be paid put the Justice Department in a tough spot.

In legal briefs submitted last year to a federal district court in Virginia, Obama administration attorneys cited Mr. Gruber in a case defending their ability to pay subsidies to enrollees regardless of whether they are part of state-run or federally run health care exchanges.

“According to the calculations of one health care economist, without the minimum coverage provision and subsidized insurance coverage, premiums for single individuals would be double the amount anticipated under the ACA,” the Justice Department wrote in a legal brief last November, citing Mr. Gruber’s work in a footnote.

The Supreme Court decided this month to take up the case, King v. Burwell, after the challengers lost to the administration in the 4th U.S. Circuit Court of Appeals.

SEE ALSO: Nancy Pelosi caught lying: Never heard of Gruber despite citing him in 2009

Neither the Justice Department nor the White House responded to questions about Mr. Gruber — who declined to comment for this story — and his role in their legal strategy.

But Sam Kazman, general counsel for the Competitive Enterprise Institute, which is funding the administration’s opponents in the King case, said Mr. Gruber’s 2012 remarks about subsidies bolster their own arguments.

Mr. Gruber at the time said subsidies would flow only to states that set up their own exchanges.

“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,” the economist told an audience.

That would mean consumers in most states wouldn’t be eligible for subsidies, which would puncture a big hole in Obamacare. The Obama administration has argued that even though the law says subsidies go to state exchanges, they also should include states that have opted for the federal exchange.

Mr. Kazman said the Gruber comments create a major problem for Mr. Obama.

“He’s not toxic to us,” Mr. Kazman said in an interview Thursday. “We may give him an award for public service.”

In a parallel case before the D.C. Circuit, the administration tried to downplay Mr. Gruber in its latest court filings. On Nov. 3, the Justice Department said in a footnote that “post-enactment statements by a non-legislator are entitled to no weight.”

“In any event, Professor Gruber has since clarified that the remarks on which plaintiffs rely were mistaken,” the attorneys told the D.C. Circuit, which has suspended its proceedings until the Supreme Court weighs in.

In the King case, Obama administration attorneys who cited Mr. Gruber in briefs at the lower court dropped him from their arguments to the Supreme Court, said Michael A. Carvin, an attorney for the health care law’s opponents.

He wasn’t about to let the justices forget.

“Tellingly,” Mr. Carvin said in a reply brief, “the government also ignores that Jonathan Gruber — the ACA architect whose work it cited in every brief below but is nowhere mentioned now — articulated the incentive purpose of [subsidies] as early as 2012.”

Mr. Gruber has made hundreds of thousands of dollars off Obamacare, serving as a consultant to the Department of Health and Human Services and to states that used health care grant money to pay him for his services.

Timothy Jost, a law professor at Washington and Lee University who closely tracks the health care law, said the controversy has been overblown.

“This whole thing just puzzles me,” he said. “He wasn’t a legislator. He didn’t write the bill. He didn’t vote on the bill.”

David Sherfinski contributed to this report.

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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