Home | News & Opinion | Does Gruber’s admission to deliberately deceiving both the public and the CBO vindicate John Roberts?

Does Gruber’s admission to deliberately deceiving both the public and the CBO vindicate John Roberts?

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Or does it make him an accessory to the “crime?”

The recent emergence of six (as of this writing) videos of prominent ObamaCare architect Jonathon Gruber of MIT admitting publicly that the administration wrote and promoted the controversial law in a manner deliberately designed to deceive both the public and the Congressional Budget Office has caused quite the firestorm. 

The revelation adds to previous evidence that the most potent ObamaCare arguments were – and are – based on lies.  For instance, federal documents and other evidence indicates that the administration – and in particular, the President himself – knew that their claims of “if you like your health insurance, you can keep it” and “if you like your doctor, you can keep him” were flatly untrue.  More recently, the administration and other proponents of ObamaCare are incredulous that (one of the few) plainly-written passages of the legislation - codifying that only citizens of states that set up their own healthcare insurance exchanges will be eligible for federal subsidies - is somehow a “typo,” and not what Congress really meant when passing the bill.  Gruber’s public speeches give the lie to that argument as well, as he is caught on tape pointing out that this language was key in, effectively, forcing reluctant states to adopt exchanges.  (This issue is currently on its way to the Supreme Court.)

But what is most interesting to me is the new light these revelations shed on what was generally regarded as Supreme Court Justice John Roberts’ effective re-writing of the Affordable Care Act.   Roberts, who was widely considered to be the swing vote in the Court’s 5-4 decision affirming the constitutionality of the so-called individual mandate (and was, in fact, the author of the majority opinion), ended up construing the legislative language of the ACA in a manner completely different than the plain language of both the text itself and the political rhetoric used to sell it.  To wit, he interpreted the “penalties” assessed against individuals who do not purchase health insurance in compliance with the law as “taxes,” even though the language of the law and the often vehement rhetoric of the law’s supporters insisted that such was not the case – the latter element based, pace Gruber, on the almost certainly correct belief that it would be impossible to pass the bill if punitive taxes were perceived to be part of the mix.

The Chief Justice was widely derided on the right for his actions, basically being termed a “sell-out.”  And not without some justification, in that opponents of the law made the inherently logical argument that a) the text of the legislation clearly utilized the terminology of “penalties” rather than “taxes,” and b) the political viability of the law passed was based largely on this distinction (again, pace Gruber).  Hence, the political process was perverted by obfuscation, and yet the Chief Justice deliberately “fixed” the problem for the deceivers by re-writing the statute to achieve their ends.

But there’s another take on this. Two, in fact. 

First, given the Gruber admissions, Roberts can be plausibly defended on the grounds that he was actually right on the substance.  Simply put, he looked beyond the obfuscatory language of the law and rhetoric to (rightly, it would appear) grasp its substance, with the result being that the ObamaCare “penalties” were in fact taxes, and were therefore constitutional under Congress’ taxing power.

Second, and related, Roberts relied on a larger philosophical principle that conservatives should applaud:  deference to Congress.  Roberts apparently decided that the unsavory means used to pass the law were not, ultimately, relevant to the Court’s assessment of the law’s substance.  He quite consciously took the rare (these days) and modest position that underhanded practices within the legislative and political realms should be rectified within those realms, not by the Judiciary. 

And given the deep unpopularity of the law currently, emphasized by the recent GOP wave in the midterms, he may have been quite prescient.

So even for someone like me, who loathes ObamaCare and believes it is a gross overreach in government control over our lives, I must admit that John Roberts may have outsmarted us all.  By relying on principle.

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Angus DuBois
Angus DuBois
Angus DuBois is the nom de plume of an entrepreneur of 20 years who, in cowardly fashion, prefers to keep his/her business identity a secret. Comments can be forwarded to angus@nexxuspublishing.com.

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