King v. Burwell-The Gruber Tape
Yesterday I said that my view is that Congress did not intend to use subsidies as a carrot for states to create exchanges under the ACA. What is the best argument on the other side? The answer is that Jonathan Gruber, one of the architects of the law, said in 2012 in a public Q&A that the subsidies were a carrot. Gruber now says that he misspoke.
I have significant reservations about relying on this statement. First, is this in the record? Thus, can the Court consider this at all? Second, even if it is in the record, Gruber did not give testimony in the District Court. Maybe he is lying now when he says he made a mistake. Maybe he is telling the truth. I don’t know. The way we figure these things out is through a fact-finder. The way not to do this is through appellate briefs.