Controlling the Past

By Charles C. W. Cooke

Friday, July 25, 2014

‘He who controls the past controls the future,” observed George Orwell. “He who controls the present controls the past.” This, in one pithy, symmetrical little maxim, has been the story of Obamacare from its conception to the present day.

Since its official launch, in October of 2013, the architects and salesmen of our ill-conceived phalanx of reforms have been engaged in some of the most pronounced historical revisionism of the modern era — truth being subjugated to expedience; idealism being repackaged in the pathetic language of good intentions; and the past being tweaked at every tricky stage. Thus has the ironclad promise that insurance premiums would decrease for all people given way to scoffing admissions that “of course” some people’s premiums would increase. Thus has the quixotic assurance that there would be no winners and losers been transmuted into the defensive insistence that there are no perfect plans but that this one was “worth it overall.” Thus has a favored vow that anybody who “liked” their existing plan would be able to “keep it” replaced with the patronizing mantra that people just don’t know what’s good for them — and need in consequence to be told what they may buy. Thus has the claim of “universal health insurance” been quickly forgotten, a series of unseemly statistical victory dances being offered in lieu.

And thus — now that it looks as if the executive’s attempt to circumvent the rules will meet meaningful resistance in the courts — has the scheme’s legally established architecture been reimagined as a “typo” or a “mistake” or a “drafting error,” and the damning confirmations of the law’s mastermind rewritten as the feverish claims of a churlish right-wing coup.

Today, we are witnessing the fall from grace of the progressive health-care wonk, Jonathan Gruber, a primary architect of Obamacare who is renouncing his previous testimony with all the giddy enthusiasm of a veteran clerk in the Khrushchev administration. Once upon a time, Gruber was admirably honest on the subject of how his creation worked, and what it did and did not permit the federal government to achieve. On a tour of the country in 2012, Gruber urged recalcitrant states to set up their own health-insurance exchanges, explaining in no uncertain terms the consequences of their declining to do so. A video unearthed by the Competitive Enterprise Institute shows Gruber not merely laying out how the law works, but why it works as it does. “What’s important to remember politically about” Obamacare, Gruber explains, in what he happily refers to as a “verifiable, objective” presentation, “is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits.” Why not? Because, while the federal government is permitted to establish an exchange per se, it is not permitted to offer any tax subsidies through it. “The law,” Gruber records flatly, “says if the states don’t provide [the exchanges], the federal backstop will. The federal government has been sort of slow in putting out its backstop, I think partly because they want to sort of squeeze the states to do it.” This, Gruber contended, was a “blatant enough political reality,” and one that he hoped would be enough for states to “get their act together and recognize there are billions of dollars at stake here in setting up these exchanges” — billions of dollars, he went to great lengths to clarify, that would not be available through a federal exchange. No state exchange, he explained, no money. Refuse to establish one, and “your citizens still pay the taxes that support this bill.” “So, he concluded, “you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country.” One month earlier, Gruber had made precisely the same point in prepared remarks, describing states not setting up exchanges as the “ultimate threat,” and hoping aloud that “people understand that, gee, if your governor doesn’t set up an exchange, you’re losing hundreds of millions of dollars of tax credits to be delivered to your citizens.” These clear, unequivocal, straightforward, uncomplex, honest adumbrations of the matter could have come straight out of the plantiff’s case in Halbig v. Burwell, the court case that raised the issue this week. Indeed, as Cato’s Michael Cannon says today, he couldn’t have put them better himself.

Fast forward a year or so, though, and you will see Gruber radically change his tune. In an interview with Mother Jones, conducted in early 2013, Gruber claimed that the very same “interpretation” (read: plain meaning) that he had offered in January of 2012 was — now that it was being offered by opponents of the law — “screwy,” “nutty,” “stupid,” and “desperate,” representing an approach that only fierce partisans could consider to be intellectually serious. What could possibly have happened in the interim to have changed his mind? A review of the relevant history reveals a number of things: 1) The majority of states had refused to play ball and set up exchanges, rejecting Gruber’s advice and confounding an administration in Washington that had expected them to bluster and gripe a little and then to acquiesce in full; 2) the IRS had responded to that lack of interest by issuing an illegal, ultra vires rule that promised subsidies for the federal exchanges, despite their being no grounds for this in the statute; and 3) most worrying of all, the law’s opponents had noticed, Jonathan Adler and Michael Cannon having published a paper that first highlighted the problem, and then informed a challenge in court. Reeling, politics took over and Gruber elected to rewrite history. Today, he went for the full reversal. “I honestly don’t remember why I said that,” he told The New Republic. “I was speaking off-the-cuff.”

From “verifiable” and “objective” prepared remarks to “off the cuff,” “screwy,” and “desperate” in just two and a half years? We have always been at war with Eastasia.

Those of us who have been critical of Obamacare’s endless textual invitations to leave the details of national policy up “the secretary” have often referred to the law as an “enabling act” — as a perilous general warrant that transfers the prerogatives of Congress to the executive branch and substitutes for the codified work of citizen-approved legislators the transient whims of a haughty mandarin class. Little did we know just how appropriate our critique would become. There being nothing in America’s constitutional settlement that permits a president to recast the rules if they prove electorally inconvenient for him, the Obama administration’s repeated rewriting of the law has been vexing enough in isolation. Far worse, however, is that in the eyes of the expansionist Left, Obamacare seems not to represent a limited series of binding and meaningful words on a page — there to be implemented within the usual bounds of discretion — but a holistic permission slip for its aims. Increasingly, its defenders’ arguments are boiling down to “but this is a good idea,” an approach that renders Obamacare little more than a shell into which good intentions can be poured without limit and that cannot legitimately be resisted — not by Congress, not by the states, and not even by the courts. “Sure,” the attitude dictates, “it doesn’t say we can do that explicitly. But all right-thinking people believe we should.” “Yes,” say the foot soldiers, “this was fought over tooth and nail and passed in extreme circumstances. But the intent of the good guys should prevail nonetheless.” Meanwhile, anyone who pushes back is met with the same mawkish, manipulative cry: “Are you really going to take away from people what we have now given them?”

The answer to this question should be a resounding “yes.” Yes, if you had no authority to give out favors in the first instance. Yes, if you insist upon behaving with no regard for memory or for history. Yes, if you are determined to hijack the system and ride roughshod over the consent of the governed. “Facts do not cease to exist because they are ignored,” Aldous Huxley once wrote. The rule of law, neither. Reality is not optional, and power is not its arbiter — whatever our celebrated experts might find it convenient to forget.