Submitted For Your Approval…

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300 Responses

  1. Avatar notme says:

    We all know that Gruber mis-spoke and is purposely being misinterpreted by those evil republicans.Report

  2. Avatar Mike Schilling says:

    this sort of behavior, which often leads to sanctions including jail time when it occurs in the private sector

    How many people were jailed because of the massive forging of mortgage documents?Report

    • Avatar notme says:

      So you are saying that Gruber’s lying is justified? I guess liberals can justify almost anything .Report

      • Avatar Mike Schilling says:

        I’m calling bullshit on “the private sector is so much more moral than the public one.” It’s hardly even worth mentioning how routinely businesses mislead people as a matter of course, so I’ll lead with how felonies barely even rate a fine.Report

      • Avatar Damon says:

        While true Mike, the private sector is, at least, CAN be punished for their criminal actions, whether or not the authorities choose to do so or not. Gov’ts, having immunized themselves from legal liability, can’t. So, who’s worse?Report

      • Avatar notme says:


        “I’m calling bullshit on “the private sector is so much more moral than the public one.””

        That’s not even what MAJ Zed wrote. If you are going to be full of outrage at least get the facts right.Report

      • Which branch of the federal government does Dr. Gruber control? And if the answer is “none” just what significance should anyone attach to his insulting reminiscences (I find it trivial about whether an IRS-imposed fine should be considered a fine or tax; what’s insulting is calling the electorate stupid for no reason at all (since the ACA wasn’t put up for a popular vote) and I can only assume that the conspicuous omission of that slur during the right wing’s snitfit about fines vs taxes is because that’s what the right wing thinks the electorate is.)?Report

    • Avatar Dave says:


      People or bankers? Big difference.Report

    • Avatar Major Zed says:

      How many people were jailed because of the massive forging of mortgage documents?

      I don’t know the answer to that, but I suspect it is not nearly enough. But then, that whole fiasco was so intertwined with politically connected folks that it was more expedient to blame everyone (i.e. blame no one) and move on.

      Martha Stewart got jail time, not for insider trading, but for lying about insider trading. We expect folks in the private sector to be tempted to do wrong things, so we have laws we often enforce to make them think twice. What do we expect from people in the public sector?Report

      • Avatar Mike Schilling says:

        Do you mean she said “Sure, I used information someone at the company told me, but that’s not “insider trading”; that’s ‘being heads-up'”, and that’s the lie she was jailed for? Because if she lied about facts rather than terminology, I’m not seeing the analogy.Report

  3. Avatar Brandon Berg says:

    Remember that after they sold it as not a tax to the voters, the Supreme Court then interpreted it as a tax to justify upholding it.Report

    • Avatar Don Zeko says:

      So that one way or the other, we can all get very worked up over an entirely semantic distinctionReport

    • Avatar Michael Cain says:

      And this is why I think the the Supreme Court pre-empted the ACA subsidy case, rather than let it work its way through the appeals court. Roberts tied himself in knots to construct an opinion that supported the ACA, even though no majority supported the overall opinion. We can debate what his underlying motivations are, but I simply don’t think he’s going to let the ACA collapse now. Lots of pundits are writing that the conservative wing of the SCOTUS granted cert. I would not be surprised to find, if we could get at the actual facts, that the liberal wing did it after being assured by Roberts that the purpose was to put to rest the notion that there was any way to kill the ACA in the court system.Report

    • Avatar Barry says:

      In the sense of taking a ridiculous interpretation and approving it.Report

    • Avatar Michael Drew says:

      Remember that after they sold it as not a tax to the voters, the Supreme Court then interpreted it as a tax to justify upholding it.

      I remember. There’s no problem with it, either. Their primary defense of it at Court was as fine a authorized by the Commerce & Necessary & Proper clauses. A secondary defense was that it was the equivalent of a tax for the purpose of the Taxing power, which precedent says authorizes fines or penalties that function as the equivalent of a tax. Roberts elected to uphold it on that basis. That under precedent it’s the equivalent of a tax for purposes of the Taxing power doesn’t mean it is a tax and not a penalty. Some argued that that saying otherwise would mean that it couldn’t be upheld in court as the equivalent of a tax in the event that the Court wrongly found it could’t uphold it as an exercise of the Commerce & Necessary & Proper clauses. That didn’t end up being problem, did it?

      Incidentally, Scalia, Kennedy, et al. argued it isn’t a tax (or the equivalent), for obvious, outcome-interested reasons.Report

  4. Avatar Jaybird says:

    If you haven’t seen this from twitter, you might enjoy it:

    An internet that keeps track of everything is the best defense we have against the creation of a memory hole.

    And it wasn’t even built for that.Report

      • Avatar Jaybird says:

        The main thing to keep in mind is that if we read an opinion about this Gruber fellow, we should check to see if the same person had an opinion back in, oh, 2012.

        If the two opinions are significantly different, I think that “why” is a question very much worth exploring.Report

      • Avatar trizzlor says:

        Gruber wrote Romneycare, which was the direct model for Obamacare, so in the context of policy ideas (not to mention an offhand tweet) he pretty much wrote it. In the context of actually passing the law, he crunched the numbers on the Obamacare proposals using his Romneycare model. This is all pretty clearly explained in the current Vox piece. It seems to me like that gif does more to confuse the issue than to actually illuminate it.Report

      • Avatar Mike Schilling says:

        But it doesn’t matter whether the tweet is accurate if it can be used to embarrass people who deserve it. Seriously, if you’re reduced to using Twitter as if it were a reliable reference source, give up.Report

      • Avatar Michael Drew says:

        Is, “What she said before was really, really lazy ‘journalism’ (or Tweeting, or opinion-forming)” a viable answer to “why”?Report

      • Avatar Jaybird says:

        I’m sure that calling it “lazy journalism” is something that is likely to be accurate. (I mean, whenever I see a news report on Dungeons and Dragons or the like, I’m surprised by how much the reporter gets wrong (this was more of a deal in the 80’s, of course… nowadays, reporters are likely to have actually played, but stick with me) and so I shouldn’t be surprised when a reporter gets stuff equally wrong about something much, much more complex.)

        But there’s also the distancing thing which, in some (but certainly not all) cases, looks a lot like “this guy is now a liability, therefore he was never an asset” memory holing behavior.

        Now, of course, the whole “great man” theory of history has pretty much screwed up journalism forever because they have to find a narrative and they have to find The Guy Who Makes Things Happen because it’s good for the story even if it’s not even true… but going back and fixing the overstatements and mistakes you made back then *NOW* presents identically to bad action.

        And I imagine that we’ll see more “this guy was a nobody” in the days to come. I suppose, technically, we’re all nobodies.Report

  5. Avatar Murali says:

    basically, call it the stupidity of the American voter

    But you know, the thing is that its not like Gruber is wrong about this. Klansmen voted for Obama rather than let Hillary Clinton win. I think enough people will go for a third Bush presidency that have HRC win (which is incredibly dumb because as unlikeable as she is she is a more than able administrator)Report

    • Avatar Michael Drew says:

      …We are told, though, that Hillary’s attempts to enact major national reforms would have met with somewhat less uniform resistance and slightly more openness to agreement from the largely Southern, conservative opposition in Congress than were Obama’s.Report

  6. Avatar zic says:

    I sorta like Jonathan Bernstein’s take:

    What Gruber’s comments do is give Republicans new language to make the same points they were going to make anyway in the speeches they were going to give anyway in support of the repeal they were going to advocate for anyway. It will change nobody’s mind about a law that is now almost five years old.

    Can you actually say what some of the other bits and pieces, beyond the mandate and contraception and kids up to 26 and subsidies, actually are that took five years to put in place? Stuff like making billing consistent across all insurers in a state? This is a huge cost savings for medical providers. Efficacy studies? A boon for patients. Best practices to lower medically-caused health problems? But understand this: even if Republicans keep the Senate in 2016 and Rand Paul wins the White House and they repeal Obamacare on day 1; it isn’t going away, because this stuff is already baked into the health care system; that’s what they did for all those years after passing the law.

    Personally, I wish we’d just eliminate the age requirements for Medicare and be done with it.Report

    • Avatar Jesse Ewiak says:


      Not one persuadable person is suddenly going to be convinced Obamacare was a terrible idea because of this. This just makes people who already think it’s terrible really sure it’s quite terrible. OK, and?Report

      • Avatar Damon says:


        It also confirms my suspicions that the ACA was sleazy from the get go and it was all about getting the job done vs doing the job the right way. Additionally it supports my belief that liberals, and elites in general on both sides, view the public a rubes to be manipulated however necessary because they are too stupid to know what’s for their own good.Report

      • Avatar zic says:

        @damon that cuts both ways; it also confirms the opinion that opposition was sleazy, not willing to govern (except in the negative spaces of ‘not Obama,) despite pleading for them to participate.

        So here’s the rub: Premiums are increasing slower than they have for about two decades; the cost-curve and long-term deficits (of which health care is a driver) are bending in the right direction, millions of people now have access to health care who didn’t have that access (without serious threat to their financial stability), the system will make it easier for providers to actually get reimbursed for the care they provide, there’s some effort to make sure the care provided is actually the best option available, and we’re (finally) all talking about the same system instead of 50 different systems. So who sounds sleazy? The people threatening death panels or the people who actually accomplished those things?Report

      • Avatar Damon says:


        Z, don’t get me wrong. I view all politicians with disdain. However, in general, I have no problems with the opposition, who ever it is at the time, taking a stand of “negatives spaces of not xxx”, as long as their constituency is driving that bus.

        The rest of your comments are irrelevant. Frankly, there’s a right way to do something and a wrong way. The ends don’t justify the means, ESPECIALLY when this comes from our ostensible employees on the Potomac.Report

      • Avatar zic says:

        The ends don’t justify the means.

        The means (refusing to govern) don’t justify a seat in Congress.Report

      • Avatar zic says:

        The rest of your comments are irrelevant. Frankly, there’s a right way to do something and a wrong way. The ends don’t justify the means, ESPECIALLY when this comes from our ostensible employees on the Potomac.

        What are the right ways to do something?

        As for disdaining politicians, that’s pretty much a self-fulfilling prophesy, no? Why should good people bother to run when they’re so disdained? Cede the field to the corrupt and greedy.Report

      • Avatar Kim says:

        Do you find slipping a fusion reactor into the Navy’s submarine program to be similarly despicable? If so, why not?Report

      • Avatar Damon says:

        “The means (refusing to govern) don’t justify a seat in Congress.” Actually, doing nothing, is that’s what the people who elected you want you to do, is perfectly acceptable. They are the people’s servants.Report

      • Avatar Damon says:


        “What are the right ways to do something?” That’s rather broad, but disguising what a bill does, it’s impact on the economy, people, etc. to get it passed and not created a negative backlash. I call that “not the right way to do something”.

        “As for disdaining politicians, that’s pretty much a self-fulfilling prophesy, no? Why should good people bother to run when they’re so disdained? Cede the field to the corrupt and greedy.” Oh, it’s democracy wonderfull?Report

      • Avatar Damon says:

        Do you find slipping a fusion reactor into the Navy’s submarine program to be similarly despicable? If so, why not?”

        I have no idea what you mean by this…..Report

      • Avatar notme says:


        “What are the right ways to do something? ”

        Well, you can start by not lying about material facts such as being able to keep your insurance if you like it. I can only imagine how many people heard that and stopped paying attention to the debate over the ACA thinking they were okay. Atleast until they got the cancellation notice and learned how screwed they were.Report

      • Avatar zic says:

        @notme, did you lose your insurance? Anybody you know lose their insurance? If so, did you (or they) get new insurance? Did it cost more? Does it cover more?

        But first, did you lose your insurance?Report

      • Avatar notme says:


        No, I didn’t. That doesn’t change the fact that Obama lied to get people to support the ACA. How is my insurance relevant to Obama’s lies?Report

      • Avatar zic says:

        Because a lot of those people who actually lost insurance (all were in the individual market, btw,) would have lost those plans ACA or not, the insurance companies were dumping them. This happens all the time in the individual market; one you purchase isn’t offered the next year, some variation is.

        The actual number of people who lost insurance is, according to, estimated at about 700,000 total; and how many would have lost insurance no matter what (Obama’s promise or not, he can’t make insurers offer plans they planned on canceling) is some part of that number.

        But you’re really not interested in that, just the gotcha. Obama lied. Proves all my points about him.Report

      • Avatar notme says:


        Does any of that changed the fact Obama lied? Not really. What “gotcha” is there in admitting that Obama lied? Are you saying Obama is so incompetent that he didn’t know he was lying? Do you really think the ACA would have gotten more support if he told the truth? Can you even admit that he lied?Report

      • Avatar Will Truman says:

        Notably, and pertinent to this post, the Gruber videos were unearthed by a guy frustrated that his insurance plans was canceled.Report

      • Avatar Patrick says:

        It’s worth nothing before I make the rest of this comment that I don’t like PPACA.

        It also confirms my suspicions that the ACA was sleazy from the get go and it was all about getting the job done vs doing the job the right way.

        To the best of my knowledge, you can take out “the ACA” and put in “the (foo) legislation” and this holds up.Report

      • Avatar Stillwater says:


        So there is no legislation on books that’s not sleazy? Even the consitooshun itself?

        If that’s the case, then isn’t the best we can hope for is moving the needle towards the “less sleazy” side of things?Report

      • Avatar Mike Schilling says:

        I thought Patrick meant the process of getting legislation passed is always sleazy. And the Constitution is a perfect example: allowing slavery and even adding the three-fifths compromise as a legislative subsidy to the slave states in order to get the damned thing passed.Report

      • Avatar Stillwater says:


        Maybe we’re viewing it the same way. If the process is sleazy, then the result is sleavified. And the 3/5ths compromise was exactly what I had in mind.Report

  7. Avatar Chris says:

    This was actually pretty well known at the time. If you go back to the discussions on this very blog at the time, you’ll see people talking about how draft versions called it a tax, but they changed the language to make the exact same thing not a tax.Report

    • Avatar Will Truman says:

      This would go down easier if opponents of the law who said that it was a tax weren’t told that they were wrong. Wrong, wrong, wrong. Or worse.Report

      • Avatar Chris says:

        Yeah, one thing about the internet is that people can’t seem to remember even the things they themselves were saying two years ago. Especially when it’s not convenient.

        In fact, when people were suggesting the mandate was unconstitutional, a frequent counter was that it was just a tax named that to avoid calling it a tax. And conservatives were saying it wasn’t a tax, so it’d be unconstitutional.

        I hate our political discourse.Report

      • Avatar Will Truman says:

        That was a maddening thing here. The same guy who convinced me that maybe it wasn’t a tax two years later was arguing that Roberts wasn’t wrong because it obviously was a tax. The whole thing still gets on my nerves.

        At least with the Internet I have a greater chance of being able to look it up.Report

      • Avatar Mike Schilling says:

        They were wrong. That hasn’t changed unless you think John Roberts is some sort of authority on such matters.Report

      • This would go down easier if opponents of the law who said that it was a tax weren’t told that they were wrong. Wrong, wrong, wrong. Or worse.

        I seem to remember hoping it was a tax because then it would (in my opinion, and subsequently born out by Roberts’s ruling) its tax-ness would make it pass constitutional muster (where “constitutional muster” = what the scotus says).

        I’ve always been uneasy about the mandate. I still am, even if it’s a tax and not a mandate. And while I understood why the Dem’s didn’t want to call it a tax, I did wish they’d adult-up about it and admit it for what it was.

        I actually wish it were more of a tax. A health care tax, perhaps assessed progressively based on income, that can be reduced or even made negative based further on income and on whether one purchases health insurance.Report

      • Avatar Mo says:

        The same opponents that said it wasn’t a tax when it went to the SCOTUS? Politics is more like a sports bar than well thought out ideas. “Lebron is a horrible person and just in it for himself” …. moves to Cleveland, “Isn’t it great how loyal Lebron is to his home town?”Report

      • Avatar Will Truman says:

        I found conservative behavior throughout to be quite aggravating, but nobody is particularly defending their integrity here.

        Though I actually cut opponents some slack since they were using the words of those who passed the law.

        There is an interesting inverse between this and Halbig. Whether we’re supposed to consider intent of lawmakers switched between cases.Report

      • Avatar Michael Drew says:

        What people who were right in what they were arguing said is that precedent says that if they could pass a tax that worked the same way under the taxing power, they could pass this penalty under the taxing power. That doesn’t mean they were saying it was a tax and not a penalty.

        Obviously, people probably said things other than that as well and people can have feelings about that. But that doesn’t mean those people matter. Does everything absolutely anyone anywhere says about anything matter?Report

      • Avatar Don Zeko says:

        @will-truman In Halbig, we’re talking about the intent of the lawmakers on how the law should work. On this issue, it’s about whether or not the intent of the lawmakers matters on how to describe a part of the law, the workings of which are not in dispute.Report

      • Avatar Will Truman says:

        In my view, that difference is less interesting than the core similarity. Or, at least the question of “Does what the legislators intend to be the case matter, if the law itself is unclear?”

        If it does, that helps the case for the defendants in Halbig but and the defendants in NFIB. If it doesn’t, that helps the case for the plaintiffs in Halbig and the defendants in NFIB.

        One doesn’t have to hold “intent” constant. There is room to maneuver philosophically, or for one’s desired result.Report

      • Avatar Michael Drew says:

        It’s not clear to me why the intent hurts in NFIB. They didn’t intend it to be a tax (even though they set it up to be administered and operate like a tax to some great extent), but that doesn’t and didn’t hurt the case that they could enact it under the taxing power. Or it didn’t hurt too much, which is why they won on the point.Report

      • Avatar Don Zeko says:

        As @michael-drew said, legislative intent matters on questions of statutory interpretation as it does not if the question is whether or not Congress has the constitutional authority to act as it did.Report

      • Avatar Will Truman says:

        Is that distinction established precedent?

        (Also, the “hurts if applies” assumes application or non-application, depending on the sentence.) Report

      • Avatar Michael Drew says:


        I’m not sure if it matters for the legal case precisely whether they intended it to be a tax as opposed to whether they meant for it to operate like a tax to some extent or another (or as opposed to whether it just does objectively operate that way). But even if it mattered it can’t have mattered too much since they won on the point. What I’m sure of is that there is no way to point to Congressional intent to show that they meant it to be a tax, given the pains they went to to be sure it would be understood not to be a tax.

        So even if you hold people to saying that intent matters 1) it’s not clear the intent was that it is a tax, in fact the evidence points the other way; 2) it’s not clear people thought it would matter for the defense of the law that the public to some degree be convinced that was the intent; 3) I’m not aware of who, on the basis of fearing that what they didn’t necessarily think was the case in (2) might be the case, argued that it was the case that Congress intent was that it was a tax.

        So even if we grant that intent matters in both cases, it’s not clear that the impact of the intent on NFIB, or fears about perceptions of intent, caused people to say that the intent was that it was tax. The argument was that it operates like a tax enough to satisfy the legal requirements. Even if intent matters for both, it doesn’t cut against defenders of the law on either question.Report

      • Avatar Michael Drew says:


        Is that distinction established precedent?

        I’m not sure Don’s right about that (but he may be!), which is why I’m addressing how the intent mattering would actually cut. This gets into what’s realistic to assume about how people might have thought courts might have reacted to the public believing different things about the intent, etc., so pretty quickly we get to a place where either way is as plausible as the other, I think.Report

      • Avatar Don Zeko says:

        @michael-drew We’re in agreement, I just must not have made my point very clearly. Legislative intent writ may make a difference in Halbig, since it will essentially function as a tie-breaker if the court finds the wording ambiguous, whereas I agree that it didn’t really matter at all in Sibelius, since whatever Congress calls its action, if the action can be justified under the taxing power, then Congress has the constitutional authority to act in that way.Report

      • Avatar zic says:

        @will-truman isn’t much of this the definition of tax one uses? According to Roberts, it can be either a ‘tax,’ in the traditional sense, or a tax penalty, levied when you don’t comply with the rules.Report

      • @zic A “tax penalty” would be an unconstitutional use of the taxing power – both Roberts’ opinion and longstanding precedent (cited in my post linked by Chris above) held that the taxing power does not authorize penalties that take the form of a tax. The mandate fee was held to be a tax (again for the reasons I had predicted) precisely because it was far from punitive, with the key factor being that it was less than the cost of buying health insurance itself. Had it been found to have been an actual “penalty” it would have been an unconstitutional use of the taxing power.
        @michael-drew I know we’ve had this discussion before, so I won’t belabor the point, but I think it’s a real stretch to say that the intent was either irrelevant or of minimal import just because the mandate was ultimately upheld. By a number of accounts I recall, Roberts was initially of the view that the intent (particularly as expressed in the language of the ACA) was dispositive. It surely would not have taken much for him to have stuck with that view.

        Indeed, had he done so and thus voted to overturn the mandate, the portion of the resulting decision rejecting the tax argument would have widely been deemed an afterthought, and almost certainly the least controversial aspect of the decision – it would hardly have been radical to find that calling and structuring something as a penalty makes it a penalty. Roberts even at one point goes so far as to acknowledge that the natural reading of the statute required it to be viewed “as a command rather than a tax.” He explicitly skirted this “natural reading,” though, saying that it is “only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be interpreted as a tax.”

        But more importantly, it’s worth mentioning that the only reason the issue of the mandate got anywhere with the court is because the court first – unanimously – found that it was not a tax for purposes of the Anti-Injunction Act (which, I must emphasize, contains no definition of what constitutes a tax, just like the Constitution).

        So while the mandate was ultimately found to be a tax for Constitutional purposes by 5 of the 9 justices (Roberts and the four members of the liberal wing), it was first found unanimously that the clear intent of the mandate was that it not be a tax for other purposes and that this intent controlled.

        This is incredibly important for a number of reasons, and not just because it meant that the mandate was saved only because five justices, including the conservative CJ, were willing to adopt a very questionable view that the word “tax” has a different meaning in the Anti-Injunction Act than it has in the Constitution despite an identical lack of definition of the word in either authority.

        But maybe the assumption is that Roberts was being purely a political actor in salvaging the mandate and that, despite the language he used, the intent exhibited by the mandate had no impact on his decision as to the mandate’s viability whatsoever.

        Even if that’s true – and I don’t think it is – the fact that all five justices who voted to uphold the mandate on tax grounds first concluded that it was not a tax for purposes of the Anti-Injunction Act had huge effects. Specifically, if those same five judges who considered it a tax for purposes of the Constitution had also been able to find it to be a tax for purposes of the Anti-Injunction Act, the question of the mandate’s Constitutionality would have warranted no further discussion – the Anti-Injunction Act’s applicability would have been an absolute bar to any challenges as to the mandate’s Constitutionality.

        That in turn would have meant that the Court never could have or would have reached the question of whether the commerce clause authorized the mandate at all. And the Court’s discussion of the Commerce Clause (and for that matter the necessary and proper clause) was a gamechanger – the most significant limitation of Congress’ power in a very long time.

        This is a huge effect stemming directly from the fact that Congress and Obama (with little evidence, IMHO) viewed it as politically expedient to avoid calling it a “tax” and bent over backwards to insist that it was not a “tax.” And it’s not an effect that can be explained away as having been inevitable – again, it wasn’t just Roberts and the conservative wing of the court that found it a “penalty” rather than a tax for purposes of the Anti-Injunction Act, but also all four members of the liberal wing.Report

      • Avatar Michael Drew says:

        By a number of accounts I recall, Roberts was initially of the view that the intent (particularly as expressed in the language of the ACA) was dispositive.

        To be clear, the intent being that it was not a tax. So are we sure he changed his mind on that, rather than realizing that the intent in fact didn’t matter, and all that mattered was its operation?Report

      • @michael-drew While he certainly came to the eventual conclusion that the intent could be overcome for purposes of the Constitutionality, the point here is that this was by no means inevitable. In fact, while he’s saying that he’s willing to rule it a tax in spite of the intent, he’s also saying that this is only because there is juuuust enough ambiguity in the expression of that intent to warrant applying a tortured interpretation. I strongly suspect that if the mandate had at all approached the actual cost of health insurance, he’d have found the expressed intent dispositive.

        Basically, it looks like he wound up doing a balancing test in which intent was a significant factor, but one just barely outweighed by the combination of the rule of construction that statutes should be interpreted to survive Constitutional muster if at all possible, the fact that the fee was comparatively low, and the fact that it was to be collected by the IRS.*

        *Speaking of which, I’d love to know why the word “tax” was considered more important to avoid than the phrase “collected by the IRS.”Report

      • Avatar Michael Drew says:

        To the last, because the IRS is the bugaboo of nutters (lots of people know perfectly nice folks who work at the IRS or State Revenue), whereas no one wants to hear about a new tax they have to pay. Or a lot fewer.Report

      • Avatar Michael Drew says:

        Does the precedent say that Congress can pass it under the taxing power even if it’s not a tax so long as it works like a tax, or not? If it, does why would that precedent exist if Roberts was right to be looking for an intent by Congress that it be a tax, just not one they were going to call a tax? Does the precedent really say that it both has to operate as a tax and that Congress has to intend it to be a tax for something they don’t call a tax to be authorized that way?Report

      • Avatar Michael Cain says:

        I don’t know about the feds, but a few years ago the Colorado legislature passed a bill that went through the unemployment insurance statutes and replaced every occurrence of the word “tax” with “premium”, then successfully claimed that the UI program no longer counted towards the Taxpayers Bill of Rights limits in the state constitution because it wasn’t a tax-funded program. It had been a tax-funded program since its beginnings, but suddenly, by simple virtue of a wording change… These things seem to be sort of mutable.Report

      • Avatar Michael Drew says:

        FWIW, here’s Jack Balkin more than providing some ammunition for Will’s basic point. The only thing I’d say (which Balkin points out) is that the administration throughout remained much more restrained in making the tax power argument than Balkin thinks is merited, and unlike him, yo my knowledge never state that the mandate is a tax. I’m also not aware that you’ll find Balkin reversing himself at some other point on whether it’s a tax. AND I’m not sure he exactly takes a position on whether Congress intent about whether it’s a tax matters for whether “it’s a tax” for taxing power purposes.

    • Avatar Stillwater says:

      Chris and Trumwill:

      My recollection of those heady days is a little different. What we’re discussing now (on this thread) is whether the Obama Administration deliberately lied to the American people by presenting the mandate enforcement mechanism as a penalty rather than a tax. And on *that* score I think a compelling argument could be made that they did no such thing since the defense they presented to the SC was based entirely (if I’m remembering it correctly) on the view that mechanism was in fact a penalty and not a tax. I mean, if they were really trying to pull the wool over people’s eyes just to get the bill passed, then why didn’t they trot out the *real* justification when they got in front of the SC? That makes me think all this talk of deception isn’t quite as straightforward as Gruber makes it sound.

      On the other hand, it was only after lots and lots of reading on my part – Balkinization and comments made by Mark Thompson here at the League – that convinced me that the Obama Administrations purported justification for the mandate (and accomanying enforcement mechanism) was a bunch of hooey. I recall conversations with Mark in which I’d express bewilderment regarding the Admins arguments, and Mark would basically agree that it was baffling.

      All that’s to say that I don’t think the claim of intentional deception si as easy to make as some folks think it is. There was lots of confusion about this on all sides. And the only reason we have any clarity at all on the issue (if we do) is because of John Roberts activism on the bench.Report

      • Avatar Will Truman says:

        Still, the administration argued prior to the Supreme Court that:

        “In short, the minimum coverage provision is a tax in both administration and effect”

        “The minimum coverage provision operates as a tax and will produce billions of dollars in annual revenue,”

        “There is no doubt that the ‘practical operation’ of the minimum coverage provision is as a tax.”

        And before the Supreme Court they argued:

        “The minimum coverage provision is also independently authorized under Congress’s taxing power…The provision thus operates as a tax, and it is projected to raise billions of dollars in revenue each year.”

        Michael Drew argues that this is all different than saying “It is a tax” which I pretty strongly disagree with.Report

        • Avatar Michael Drew says:

          It’s clearly different. All that “operates like” language is there for a reason. And it’s especially different that it’s done in court, where you say what you need to say to win. (You didn’t make up the precedents.) So it would even not be the same if they’d said explicitly “It’s a tax” in court than if they’d said it in free public statements explaining the law, and they didn’t even do that.Report

      • Avatar Stillwater says:


        Yeah, I hear ya. I find the whole thing incredibly baffling, myself. I mean, the administration *also* said mandate enforcement was a penalty (or fine, or somesuch). Fact is, I don’t think they knew what the hell they were doing when it came to the *legal* justifications.

        But to your point, refers to the tax as both a fee and a penalty (but not a tax).Report

      • Avatar Stillwater says:


        Could you rephrase that comment including the background point driving it? I’m a bit confused.Report

      • Avatar greginak says:

        Okay mandate vs tax; is this argument just about what its called or there any substance to it? I’m lost, the actual mechanism doesn’t seem to be at debate. How it works or what it does doesn’t seem to be the discussion, just what to call it.Report

      • Avatar Michael Drew says:


        There’s a lot of background on this thread (not just this subthread) if you want to check it out.

        If the issue is clarity I could try to rephrase to be clearer, but knowing me I’d fail and probably make it worse. So I don’t think it’s a good use of my time this afternoon, so I’m going to politely decline. I’m sorry. I think you can get the gist from what I’ve said and the rest of the thread. (But if not that’s my fault and I’m sorry.)Report

      • Avatar Stillwater says:


        Gruber’s claim – the one driving this post, I take it – is that the Obama admin presented the bill to the CBO for scoring based on the idea that folks who failed to purchase insurance would be fined for doing so *rather than* sending a bill to CBO which made it clear that the mandate was imposed via a tax on the uninsured *even tho* the administration knew that enforcement of the mandate could only be legitimately exercised under the Fed Gummint’s taxing powers.

        So the issue isn’t about how enforcement occurs in practice (functionally, I think it operates like a fine or a penalty), but rather about the admin refraining from calling it what it is: a tax.

        And notice that Roberts’ deciding vote and opinion clearly stated that the federal government has the authority to tax the inunsured, but not to penalize them (since there is no violation of law justifying the penalty).

        At least, that’s my best guess at it what’s going on here.Report

      • Avatar Michael Drew says:

        Okay mandate vs tax; is this argument just about what its called or there any substance to it? I’m lost, the actual mechanism doesn’t seem to be at debate. How it works or what it does doesn’t seem to be the discussion, just what to call it.

        So this is where it becomes clear that at bottom it’s a semantic and ontological question. Sure, we know exactly what the mechanism is qualitatively. But whatever it is, *is* it also a tax? Or does it just operate like one? The charges of lying and flip-flopping on the question ride on that issue. And what people are professing to care about is not the exact nature of the mechanism, but rather what’s been said about it at various times. And if it just operates like one and that’s what it’s been said to do, then there might be less reason to be mad about lies and flip-flops (but in fact there might not be less reason).

        So ultimately this is all exactly about what it’s (been) called, because that’s what people say they’re mad about. If they decided not to be mad about that anymore, the issue would go away, or could proceed to a discussion of what we think about the qualitative (and quantitative) aspects of the mechanism (if there’s anything left to discuss of that). But in order to figure out justifications around what it’s right to call it, you have to get into debates about what it *is*. So, semantics AND ontology.Report

      • Avatar greginak says:

        Still, yeah i can see that but the IRS was always supposed to be the collection agency and what you are saying seems more about definitions then actual practice. Nothing much about this seems to be about the ACA just about what things were called for better, or worse, framing. The people buying heavily into Grubergate are, it seems to me, just continuing the long line of belief that the ACA was written in a secret underground vault, is somewhere between 2000 and 10000 pages long , voted on overnight and never read by anyone. But if they were paying attention to the months long extensive debate it doens’t seem like how the ACA is working in general should be a surprise.Report

      • Avatar Stillwater says:


        OK, I think I get it. You’re responding to the quotes Will provides, and I tend to agree with your assessment that the “acts like” bits really are important. In fact, I’d say that those bits support the view that the Obama Admin *really didn’t* view the mechanism as a tax (just one that acts like a tax). The inverse of this, I suppose – and one more closely aligned with reality in my view – is that the mechanism is in fact a tax which “acts like” a penalty or fine.


        The first quotation you supply is evidence that the OAdmin thought of the mechanism as a tax. The other two, tho, are evidence that they didn’t view it as a tax.

        As nice as it would be to find a definitive answer to this issue (did the Obama Admin deliberately lie about the mandate?) I don’t think ti can be very easily settled. And the reason, in my view, is that the Administration didn’t understand their own bill sufficiently well to consistently articulate the grounds of the various provisions justifications. Without Roberts to the Rescue, the whole thing woulda gone down in flames.Report

      • Avatar Stillwater says:


        I think the distinction is important on a coupla levels. The first is that – according to Gruber anyway – the CBO woulda scored the bill differently if the mechanism was viewed as a tax rather than a penalty or fine. Another is that the politics of woulda presumably gone diferently as well, which implies nefarious intent to the Administration.

        Legally, tho, the distinction is important since (if I’m remembering this correctly) the justifications used to demonstrate the constitutionality of mandate enforcement are radically different. The argument that the uninsured are penalized was justified by the commerce clause and the Fed’s broad regulatory powers; the argument that uninsured are taxed was justified by the Fed’s broad taxing powers.Report

      • Avatar greginak says:

        MD, yeah i can see that however the actual substance was known at the time so there shouldn’t be any surprises. If i sell you a “burger” but you get a salad then questioning my definition of a burger seems reasonable. If i sell you a burger but call it a handheld carb and meat delivery device and show you a picture of burger, then it seems like complaining about what i called it seems off.

        I get that the people who hate the ACA because it is impure and will destroy the nation are never going to stop. Heck complaining about Gruber is easier than coming up with alternatives to the ACA or trying to fix it. But nothing about what Gruber said tells us anything new about the ACA itself nor does it shed much light on anything at the time since the sporking bill was debated for months. The people incensed about Gruber always thought everything O did was illegal or hidden or something something. I guess it’s also easier to take up news cycles by yaking about Gruber than talking about good news about the ACA. This part has been a very effective strategy.Report

      • Avatar greginak says:

        Still, i’m not sure how it would have been scored differently depending on what you called. Not saying that’s not possible but i don’t know. Avoiding calling things a tax to build support has been common, BSDI and all that. Not really anything knew about that. It would be nice is Americans were grown up enough to just discusses taxes without all the spittle.Report

      • Avatar Stillwater says:


        Still, i’m not sure how it would have been scored differently depending on what you called. Not saying that’s not possible but i don’t know.

        I dunno either, but that was a claim made by (or at least attributed to) Gruber.

        Avoiding calling things a tax to build support has been common, BSDI and all that.

        I hear ya on that, but what I’m suggesting here is that the Obama Admin actually *did* view the mechanism as a penalty and *not* a tax. Predominantly, anyway. (Sure there will be quotes out there like the one Will cited supporting the opposite view.) My inclination is to think that when the Admin went before the SC with lame-assed arguments justifying the imposition of a penalty for failing to purchase insurance, they weren’t just trying to cover their political asses. They really believed it. So I’m inclined to believe that the Admin didn’t deliberately lie about the tax/penalty distinction. I just think they were confused or had deluded themselves into thinking that the Commerce Clause argument was better/just as good as the taxing powers argument.Report

      • Avatar Will Truman says:

        Still, I do not believe “operates as a tax” contraindicates a tax. I do think that once you say that something operates as a tax, you can’t definitively say “it’s not a tax*” anymore. However, in conjunction with the first quote, as well as seeking the court to side with you on the basis that it is a tax, make the case that “it is a tax” pretty overwhelming.

        I will note that, way before a lot of these conversations were occurring – or at least before I started paying attention to them – I said the following:

        Because the federal government has the ability to set the tax code, all that is needed is “fine” people by raising taxes and then to make health insurance tax-deductible (up to a particular amount or in total). Whether it was envisioned by the Founding Fathers or by those that enacted an income tax in the first place is procedurally beside the point. Right or wrong, the courts have buckled by allowing the government to use taxation as a stick and carrot to promote desired behavior and discourage undesired behavior. If they can encourage home ownership through the tax code, they can “encourage” the purchasing of health insurance.

        I don’t agree with everything I wrote then. For example, I now think the state/federal distinction is more important than I did then, and I think that I may have overestimated the alternatives to the mandate, though then as now I don’t have a problem with it conceptually.

        But for it to work, it’s gotta be a tax. And if it is a tax in administration and effect, I don’t believe it’s not not a tax anymore. At best, it’s “only technically” a tax, which makes it a tax.Report

      • Avatar Stillwater says:


        I agree with you that it’s a tax. John Roberts agrees with both of us! But that’s not what I’ve been discussing on *this* thread. Major Zed’s OP is about the Obama Admin intentionally lying, or distorting, or whatevering, the tax/penalty distinction for political reasons. I’m arguing (not that I care all that much either way) that the OA *didn’t* lie when they said the enforcement mechanism *is* a penalty, whether or not the included the words “which functions/operates like a tax” or not. I mean, *that’s* the argument they presented to the SC! As bad an argument as it was, it’s what they tried to hang their hat on.

        But like I’ve said, I don’t think the issue of intentional deception can be definitively decided. And that’s about all I’m really saying here.Report

      • Avatar Will Truman says:

        I’m trying to find a previous thread here wherein someone (a liberal and supporter of the law, if it matters) convinced me that the verbiage in the law itself actually said “tax.” I’ll let you know if I find it.Report

  8. Avatar greginak says:

    What is the part we’re supposed to be screaming about. The tax vs mandate debate was about what was politically acceptable. The substance isn’t any different. If you want to scream that the ACA was written and sold in a way to make it most like to pass and be politically acceptable then the D’s are guilty. I’m sure all the critics are far to pure to have done something like that and/or would never ever frame things in the way they thought best. But is there any substantive difference whether you call something a tax or mandate?

    The part about healthy people paying in and sick people getting insurance is, not to put to fine a point on it or anything, but exactly what insurance does. Is it a gotcha to say insurance does what insurance does?

    Personally i’d prefer a uni HC system along the lines of Germany/Switzerland since that is the clearest path from where we are starting from. I ‘d also love to just call things taxes and stop all the bull pooping by all sides about what stuff is called. Lord knows there are all sorts of euphemism used to avoid calling things taxes or spending. So i guess it is fair to say the ACA was sold with a lot of positive framing to make it a better sell just like every other spending bill. Guilty as charged. Of course my preferences are for wonky discussion of what works best and i’m not afraid of the word tax so i’m deeply out of step with the rest of the country.

    And even with the framing of the ACA is was still a more honest delivery then the shit storm thrown against it which is entirely irrelevant here. But what is relevant Gruber is a walking gaff machine partially because he tells unpalatable truths at times. What is the point? Is this all the lead up to the 75th or 100 attempt to kill the ACA or to the R’s famous health care plan they have been threatening to role out.Report

    • Avatar Don Zeko says:

      I don’t think that there’s anything particularly dishonest or cynical about the ACA’s passage, at least compared to any other major legislation ever, but if I did, then “Repeal & Replace” would be a great reason to not listen to these sorts of procedural complaints ever. Everyone that cares about these comments was already opposed to the ACA for its substance, so why not stick with talking about the substance instead of switching to nonsense like this?Report

    • To this day – and the archives of this site will show that I was trying to figure this out at the time – I do not for the life of me understand why inure world the authors such as Gruber were and are so insistent that it not be called a tax and that calling it a tax would have meant it didn’t pass. The ACA was passed despite it being quite unpopular as it was. People who are anti-tax were already universally opposed to it, and more loudly so than just about any opponents of a piece of legislation in memory. So who, exactly, was going to drop their support of the ACA because it became associated with the word “tax”?

      Again, as I said at the time, it was always the case that the ACA mandate’s best chance of survival in SCOTUS was going to be as a tax. And yet we are to accept without question that it was both necessary and justifiable to lie about this fact in order to pass it. At no time has anyone I’m aware of given the name of a single legislator, much less a decisive number of legislators, whose votes would have changed if the word “tax” was uttered.

      In fact, that’s about the best that can be said about the lie- that it served no purpose and no one relied on it, so no harm, no foul.Report

      • Avatar Don Zeko says:

        The only reason I can think of is that it matters for purposes of Grover Norquist’s anti-tax pledge, but of course that makes no sense because nobody that voted for the final bill took the pledge and the bill included plenty of other explicit taxes that nobody tried to argue were anything else. So I agree, this rationale makes no sense. Insofar as Gruber thought this way, it suggests that however much he may have been involved in the bill as policy, he sure as hell couldn’t have contributed that much to the politics of passage.Report

      • Avatar Will Truman says:

        It mattered politically because Obama said that he would not raise taxes on anybody making under $250,000 a year. Critics pointed out the mandate as a tax because it was renegging on this pledge. Defenders said that it wasn’t a tax to deflect those criticisms. Whether it makes sense or not, Obama was very loud and clear in arguing that it was not a tax, and did so for a reason.Report

      • @will-truman The thing is that Gruber is insisting that the mandate would not have passed at all if it was acknowledged to be a tax. Whether that would have meant Obama was breaking a campaign promise (that, seriously, pretty much no one believed) was irrelevant to whether they had the votes to pass the legislation. I also think it could have been much more credibly argued after the fact that his promise was referring only to income taxes, or by arguing that this tax was more than offset by some other policy.

        Getting caught in an outright lie strikes me as obviously far worse than getting accused of breaking a campaign promise that few, if any, people actually relied on. And that’s before we get to the fact that the survival of your signature legislation largely depends on political opponents seeing through the lie rather than making you live with the consequences of it.Report

      • Avatar Will Truman says:

        Gotcha. I can think of two reasons for that:

        1) The Blue Dogs were extremely skittish and feared “Senator Lambert voted to raise taxes!” ads in 2010. Or were simply looking for reasons not to sign on. It was a very fragile vote, so this possible.

        2. Gruber was told that the wording absolutely had to be changed by didn’t understand why.

        I agree that “I meant income taxes” would have been an okay response (would have made sense to me) but that wasn’t the route Obama went, instead arguing that it wasn’t a tax. Which was an explanation many on the left defended.

        I found a post by Previous Will saying it was a tax and being told he was wrong. (You were there, saying what you are saying now.)Report

      • @will-truman I’m incredibly skeptical of 1. While some of the Blue Dog support was certainly tepid to begin with, they were going to face the “voted for a tax increase ads” no matter what happened – it’s about impossible to be a Democrat and not vote for something that your opponents will insist is a tax increase, just as it’s impossible to be a Republican and not vote for at least something that your opponents will insist is a massive benefit cut. And it’s not as if the semantic characterization was going to affect the views of a meaningful number of their constituents about how the Blue Dog voted.

        Honestly, my suspicion is that it came about because they really thought they could guilt some Reublicans into signing on and horribly misjudged the depth of opposition. As I recall – though I would need to go back and look- the Blue Dog types were wavering for reasons having little to do with the taxation issue and were more concerned with getting substantive concessions.Report

      • I think the mandate fine can be sincerely interpreted as an income tax. Whether the fine/tax applies depends in part on income and for those to whom it does apply, avoiding it by buying insurance can sometimes be compensated for by a subsidy that is tied to income. Also, the tax/fine, as I understand it, comes out of one’s tax refund, and the exact amount is reflected as a percentage of one’s income.Report

      • Avatar Kolohe says:

        “t mattered politically because Obama said that he would not raise taxes on anybody making under $250,000 a year.”

        Though he had already broken that promise, within a month of taking office.

        …Senator McCain may claim; here are the facts. If you make under 250 thousand dollars, you will not see your taxes increase by a single dime. Not you income tax, not your payroll tax, not your capital gains tax – no, nothing, because the last thing we need to do is put more of a burden on you.


      • Avatar Kim says:

        I think the ” you now have to pay taxes on longterm capital gains” was more of an issue.Report

      • Avatar Michael Drew says:

        I’m more or less with Will here, to the extent that I think there was clearly reason to fear that moderate/conservative Dems would scatter if they not only had to toevote [Ed.: though “toe” actually pretty much works as the verb there] for the mandate, but vote for it when it was being explicitly called a tax (which I maintain wash’t necessary as a matter of actually describing it truthfully). I think Gruber (whose political estimations at this point seem to me to be basically worthless) overstates it in saying he absolutely knows it wouldn’t have passed if it had been called a tax. But I think it’s right to believe that the 58th, 59th, 60th least liberal votes in the Senate were driving the bus on passage of this, and that their fears of calling it a tax governed the need not to do so.Report

      • Avatar kenB says:

        At work and can’t check the details, but as I recall, if it were treated as a tax, then there would have been a problem because the bill originated in the Senate…Report

      • Avatar Michael Drew says:


        That lawsuit actually exists, I believe, though I’m not sure it hinges on the mandate penalty itself being the tax that triggers the origination clause.Report

      • Avatar James Hanley says:

        Technically, the bill did not originate in the Senate, but it did substantively.

        1. The House passed the Servicemembers Home Ownership Act and sent it to the Senate.

        2. The Senate passed their own version of a servicemembers home ownership bill and sent it to the House.

        3. The House accepted the Senate version, passed it, and sent it to Obama who signed it into law.

        4. The House originated Servicemembers Home Ownership Act was now an orphan, a bill that was live in the Senate but had no purpose.

        5. The Senate amended the House originated Servicemembers Home Ownership Act by replacing the whole text with the text of the ACA. (This is not as rare as one might expect, although it’s not an everyday occurrence.)

        6. The House agreed to their original bill as amended by the Senate.

        Setting aside all the normative and partisan debates about the ACA, this is quite interesting, as it demonstrates how the Framers were no match for two centuries of experience with parliamentary procedure.

        And if we can step outside our policy preferences for a moment, it’s an interesting thought experiment about how we would review this if we were the Supremes. On the one hand, the bill that contained ACA carries a tracking number that demonstrates that it started in the House. On the other hand every word of text in that bill originated in the Senate. On the other hand (you can’t really do politics unless you have at least three hands), the House was working on very similar legislation anyway.

        In addition to all that, there’s the consideration that the Origination Clause was written because the Senate didn’t represent the people–now it does. So do we say it doesn’t really matter because its purpose is effectively dead, or do we say it still matters because if the Framers of the 17th Amendment had wanted to do away with that requirement they could have?Report

      • Avatar Michael Drew says:


        On the last, probably not, wouldn’t you say?

        The rest is fascinating, though. I would lean with the formal tracking number being good enough, as it’s not clear how different you would require a bill to be to be able to substitute it in for the text of another bill. I suspect it would break down as the other health care cases have, with Roberts doing whatever he needs to do for inscrutable reasons, writing a reasonable opinion addressing the question whichever way he needed it to go.Report

      • @james-hanley @michael-drew @kenb That suit does indeed exist, and the plaintiffs did indeed seek to rely heavily on the fact that the mandate was upheld solely as a tax. They lost in the DC Circuit unanimously in July:$file/13-5202-1504947.pdf

        It’s a pretty well-reasoned and explained opinion with quite a bit of precedential support that points out that something that is a tax and something that is a “bill for raising revenue” are not the same. Because of that it didn’t reach the issue of whether the bill actually originated in the house.

        There’s a petition for an en banc re-hearing still pending, but since the panel decision was written by Janice Rogers Brown, it’s really hard to see it getting much support from even the most conservative of judges.Report

      • Avatar James Hanley says:

        something that is a tax and something that is a “bill for raising revenue” are not the same

        Sure, the former is a subset of the latter. 😉Report

      • I know you’re joking around, but I probably should explain that the reason the latter is considered a subset of the former, rather than vice versa, is that the courts “for raising revenue” has been interpreted as meaning that revenue generation is the primary purpose of the bill. Which I think is a pretty reasonable interpretation – it wouldn’t have been hard to write “that raises revenue” instead of “for raising revenue.”Report

      • @james-hanley

        I hadn’t known that that was how the Senate got around the origination clause. Thanks for sharing it.Report

      • Avatar Michael Cain says:

        When I was a member of the state legislative staff, we all hated “strike below” amendments with a passion. But as Prof. Hanley points out, it’s not as rare a practice as you might think. Because of that, and because Colorado has a rule that bills must relate in some reasonable fashion to their title, the staff here that does drafting/review of bills always encourages members of the General Assembly to use as specific a title as possible. One session, a bill that the sponsor insisted be titled “Regarding Child Welfare” went through multiple strike-below amendments as it moved through the process.

        There are days when I think many of the Colorado General Assembly’s rules were written for the explicit purpose of eliminating the kind of underhanded maneuvers that Congress does routinely.Report

      • Avatar James Hanley says:

        As usual with these things, I’m torn between a vestigial moral animal inside me objecting that things ought not be done that way and the strategic side of me that admires the technique and thinks no one can legitimately complain unless they truly would never use such strategies themselves (my “sports” approach to ethics–whatever fouls you want the refs to call on the other team you shouldn’t bitch about them calling on your team).Report

      • Avatar Jaybird says:

        Hey, if the ref didn’t see it, it didn’t happen.Report

    • Avatar Major Zed says:

      Thanks for the links. When I first looked, Google returned page after page of conservative blogs, and I didn’t know how to implement the right filter in my query!

      So the responses here basically amount to “So what? That’s the way it works in this town. Don’t pretend you didn’t know.” Is it cynicism if what you are saying is true? I don’t know. But it leaves the impression that the next time a liberal tries to take the moral high ground… it is simply posturing.

      Also, I cannot let this comment go unremarked: “Of course healthy people pay in and sick people get money. It’s health insurance. That’s how it works.” We batted this back and forth in February of 2013, and here’s a link to my statement on the matter.Report

  9. Avatar Jesse Ewiak says:

    One of my political heroes is LBJ. Next question.Report

    • Avatar aaron david says:

      So, you like warmongers? Or is that cool as long as they do something you approve of…Report

      • Avatar Jesse Ewiak says:

        I’ve said it before and been piled on, but here it is.

        We were going to kill lots and lots of foreigners during the late 60’s whoever was POTUS. At least LBJ got Medicare, Civil Rights, and the Great Society out of it.Report

      • Avatar j r says:

        Killing foreigners and housing projects! What a decade.Report

      • Avatar James Hanley says:

        I can see saying LBJ was better than the alternatives. That’s totally plausible and defensible. I can see saying that if horrible policy X was inevitable, at least we got great policy Y along with it, instead of also getting horrible policy Z as well.

        But calling anyone who gave us horrible policy X a “hero,” regardless of whatever good policy X Y is, strikes me as indicative of having a badly disfunctional moral compass.Report

      • Avatar Chris says:

        We were going to kill lots and lots of foreigners during the late 60?s whoever was POTUS. At least LBJ got Medicare, Civil Rights, and the Great Society out of it.

        Ya’ll can complain about whether they want to call it a tax when it’s convenient and a penalty when it’s not, but this is why I don’t like liberals. Don’t get me wrong, I appreciate much of what Johnson did legislatively (and I’ve spent a lot of time in the LBJ library/museum, ’cause my dad, who campaigned for him in ’64 at age 15 is a lifelong fan, so we go each time he’s here, and I’ve read through that long list of bills he signed), but killing all those foreigners was not inevitable until Johnson made it so. You’re talking about a period in which the ruling generation was extremely war weary after WWII and Korea, and their children would spawn the most significant peace movement this country has ever seen. Not killing 3-4 million people in Southeast Asia was possible. We just made a choice to do it anyway. You can read the transcripts and the interviews with the people who were in the Oval Office when they continually bungled their way into a greater and greater involvement in Vietnam. Waving it away because we got healthcare for the elderly is morally repugnant. “Look, millions of old people can see a doctor and get their meds. Isn’t that worth a few million brown bodies?!” Ugh.

        And this is why we’ll never have a pro-peace party at the national level: the Republicans will always be run by hawks, and the Democrats will never care enough, because the millions we kill are over there somewhere, and they don’t get to vote for Senators and Presidents.Report

  10. Avatar Aaron W says:

    Let’s put it this way: A bunch of people who have no expertise in law or economics all get upset about a fine semantic point of it being called a fine when it’s really a tax. Then, a bunch of people who have no expertise in law or economics all get upset about being accused of dishonesty because their own politicians were deliberately dishonest as a way to sell a minor point in a piece of legislation.

    I don’t see what the problem is. He was right. Voters ARE stupid.Report

    • Avatar Will Truman says:

      At the end of the day, putting my personal aggravation aside, this is more or less how I see it.Report

    • Avatar KatherineMW says:

      I agree. This feels like a pointless conversation. We’re not arguing about the actual elements or effects of the ACA, we’re arguing terminology.Report

    • Avatar LWA says:

      Yep- this is another one of those proxy battles, pantomimed fury masking the real agenda and issue.

      Team A wants to deliver universal health care to Americans;
      Team B doesn’t.

      Or maybe I’m wrong- maybe this really is about ethics in gamer journalism.Report

      • Avatar Don Zeko says:

        Emphatic +1Report

      • Avatar notme says:


        Yes, that is what Team A wants and clearly they are willing to lie and cheat to do it. Clearly we need people like this looking out for us and deciding what we need.Report

      • Avatar LWA says:

        So you are saying it really IS about ethics?Report

      • Avatar Wardsmith says:

        “Team A wants to deliver universal health care to Americans”

        Team A has never successfully delivered anything at all to anyone ever, but they say, “Trust us” even when caught flagrantly lying. Meanwhile doctors around the country are thoroughly disillusioned about the profession they’ve poured their lives into. Team A has no clue about this or anything really, their only skill is lying and manipulating the system. They still can’t understand why they get voted out of office. Perhaps voters aren’t as ‘stupid’ as they believe.Report

      • Avatar LWA says:

        “Team A has never successfully delivered anything at all to anyone ever”

        I’m just going to let that line stand on its own.Report

    • Avatar Major Zed says:

      True quote: “Lack of transparency… was really really critical for the thing to pass…. I wish… we could make it all transparent, but I’d rather have this law than not.”

      Made up quote: “Fudging the mortgage applications was really really critical to getting them accepted. I wish we could have made money honestly, but I’d rather have my vacation home than not.”

      The difference being… what? Nobility of purpose?Report

      • Avatar Jesse Ewiak says:

        Yes? Well, that, and we’re actually going to get the money that says we get in the ACA, unlike the loans with falsified info.Report

      • Avatar Major Zed says:

        The analogy being: I got what I wanted by deception. I’m pretty sure I had to do it that way because the people I was deceiving would not have gone along with it otherwise.

        As to we’re actually going to get the money – who is “we”? And whose money?Report

      • Avatar Mike Schilling says:

        Oh, I didn’t mean fudging applications. I meant forging deeds of trust to allow foreclosing on properties a bank didn’t have legal title to. Banks were running massive forgery rings in order to steal many millions of dollars in property, and not a single person was imprisoned or even convicted of a crime,Report

      • Avatar zic says:

        but didn’t the banks get held accountable for this fraud?


        Banks just paid a bunch of analysts a lot of money to say they were being held accountable while distributing a little bit of money back to homeowners who had their homes stolen.

      • Avatar Major Zed says:

        Re foreclosure fraud. What you describe is truly despicable and worthy of jail time. But I fail to see the connection with the OP. You might as well be describing Serbian war crimes.

        Are you going to answer the question? How do you feel, (a) through (e)?Report

      • Avatar Mike Schilling says:

        It goes to challenging “this sort of behavior, which often leads to sanctions including jail time when it occurs in the private sector”. In fact, far more criminal actions taken by private actors often have little or no consequence.

        At any rate, Gruber was a consultant, neither the architect of the plan nor the author of the bill, and his expertise is in financial analysis, not legislative strategy. Your question is based on the false assumption that his opinions are dispositive. They might be accurate, or they might be misperceptions based on partial information. But, assuming for the sake of argument that they are accurate, I remain unshocked that political considerations determine what language was used to describe the bill.Report

  11. Avatar Saul Degraw says:

    Jonathan Chait’s take on Le Affair Gruber:

    “2. The stupidity of the American voter. Here is where Gruber’s comment most rankles. “Stupidity” is unfair. Ignorance is a more accurate term. Very few people understand economics and public policy. This is especially true of Obamacare — most Americans are unaware of the law’s basic functions or even whether their state is participating.

    Since people know so little about public policy in general and health-care policy in particular, they tend to have incoherent views. In health care and other areas, they want to enjoy generous benefits while paying low taxes and don’t know enough details to reconcile those irreconcilable preferences. Gruber’s error here is that, by describing this as “stupidity” rather than a “lack of knowledge,” he moves from lamenting an unfortunate problem both parties must work around to condescending to the public in an unattractive way.”

    I also have to agree with the Bernstein observations that Zic pointed to above. Conservatives and Libertarians were always going to hate on the ACA. All Gruber does is give them a little gaffe.Report

    • Avatar greginak says:

      Yup Gruber said something insulting about Americans. Good gosh nobody has ever done that before. Elected representatives of the Stupid American people have never called their opponents traitors, or American haters or commies or etc.Report

  12. Avatar Saul Degraw says:

    “Gruber’s role in the passage of the ACA has been vastly exaggerated. He was a consultant, providing some expertise to help Congress and the White House do what they wanted to do. And — I stress that I’m not saying this to be critical of Gruber — it’s not as if his core ideas were some unique insight. As ridiculous as the comparison to the Heritage proposal and the ACA is, the mandate is the one thing they have in common. With European style health care reform off the table, and an employer-mandate model poisoned by the Clinton debacle, the ACA was going to take the same fundamental form had Jonathan Gruber never been born. And the specific details of the ACA had much more to do with the idiosyncrasies of marginal Senate votes like Nelson and Lieberman than Gruber.

    But, more to the point, Gruber was paid for his (genuine) expertise on health care economics, not his expertise on politics. On the latter, he’s just a guy; his comments carry weight only to the extent that they’re true or relevant, and nothing he says is both.”Report

  13. Avatar James Hanley says:

    Speaking from a purely strategic perspective, Gruber is right. And since the opponents of ACA were less than fully honest about the bill, this is of a piece with the whole process, not ethically admirable, but not notable for being beyond the established pale.

    It’s not uncommon for laws to be passed that are very general, with the details left to be filled in by the executuve branch agencies., and the USA PATRIOT Act was so non-transparent Congressmembers weren’t allowed to see it before voting on it.

    Details give people targets to attack, while obscuring details allows you to focus on goals, which are easier to sell. Gruber is really just speaking a political truth. But like the Romney aide who made the etch-a-sketch remark, it’s a truth we’re not supposed to say out loud, so that we don’t lose our illusions about democracy.Report

    • Avatar Saul Degraw says:

      It is also not uncommon for a law to be very general so Congress doesn’t need to update it a million times.

      The Sherman Anti-trust Act is a good example.Report

      • Avatar James Hanley says:

        Truthfully, Saul, I think that’s their post-hoc justification, rather than the real reason. That doesn’t mean that as a justification it’s wholly spurious, but it’s doubtful that’s the primary purpose for vagueness in very many cases.Report

      • Avatar Brandon Berg says:

        It’s also nice having a Constitution that only pretends to be a constraint on government power, right? That way we can just “reinterpret” it whenever it gets in our way.Report

      • Avatar zic says:

        It’s amazing to me that the framers of the constitution puts so much effort into spelling out processes for legislation, judicial oversight and rule of law, and executive powers and responsibilities given that their original intent was to only restrict the powers of government and not to lay out how to govern in times they knew they couldn’t foresee.Report

      • Avatar Kolohe says:

        “It’s amazing to me that the framers of the constitution puts so much effort into spelling out processes for … judicial oversight”

        They didn’t. That was Marshall’s invention.Report

      • Avatar zic says:

        It requires a conflict involving states or standing; so I suppose one could argue oversight after the fact and not before.

        But still the arbiter of government over reach.Report

      • Avatar James Hanley says:


        The Framers were responding to two contradictory forces. One was their fear of oppressive government, drawing from their late experience as colonies. The second was their fear of radical domestic instability, drawing from their current experiences as a loose confederation of 13 independent countries squabbling badly with each other and as crystallized by Shay’s Rebellion. So the general goal was to give the government enough power to hold the parts together, but not much more than that.

        Certainly anything on the order of late 20th century federal regulation economic issues was far beyond their scope. Dual Federalism–a much more strict separation of federal from state spheres of legitimate authority–was the hands-down winner of the day. The states were sovereign over nearly all matters internal to their own territory, and the federal government was sovereign over collective foreign affairs and over the interstices between the states, but not within them.

        Now this does not tell us what is legitimate for the federal government to do today–it informs that debate but certainly does not settle it. But any suggestion that because the Framers gave the federal government legislative powers they must have intended it to be able to legislate broadly is ahistorical.Report

      • Avatar zic says:

        And yet there is all that ink spilled spelling out how to legislate, how to settle disputes between states, and let’s not forget the details of how to change the constitution itself.

        Me, I’m fully with the change and interpret crowd. Otherwise, I would not be able to vote in most states; of the original 13, wasn’t NJ was the exception, provided the woman voting was a property owner. I wonder if owning other people was enough property to garner her voting rights?Report

      • Avatar James Hanley says:

        And yet there is all that ink spilled spelling out how to legislate, how to settle disputes between states,

        I don’t follow the relevance. ACA–whatever else it may be–is not a dispute between the states.

        and let’s not forget the details of how to change the constitution itself.

        We may need to call the paramedics for Brandon, who probably just choked on his coffee. Those details are great and all, but for giving the federal government authority to pass law like ACA, we certainly didn’t make any use of them.Report

      • Avatar Brandon Berg says:

        Me, I’m fully with the change and interpret crowd. Otherwise, I would not be able to vote in most states; of the original 13, wasn’t NJ was the exception, provided the woman voting was a property owner.

        The unamended US Constitution says nothing about women voting (i.e., it was left entirely up to the states), and at the time of the ratification of the 19th Amendment women could vote in most states, including in federal elections. Which makes sense when you think about it—it would be weird if 3/4 of the states voted to ratify the 19th Amendment while denying women suffrage themselves.

        All of which is beside the point: We have a process for amending the Constitution. That’s why it’s called the Ninteenth Amendment and not Anthony v. the United States. There was no constitutional amendment granting the Federal Government to do essentially anything it wants.

        The reason the powers of the Federal Government are spelled out in such detail and in the Constitution is precisely because they are limited. “Congress shall have the power to do whatever it goddamn well pleases” is much briefer than the detailed enumeration of its powers given in Article I Section 8, but also much broader. As Madison pointed out, it would have been silly to spell things out in such detail if the intent were to give Congress blanket authority to do anything.

        If you actually read through Article I Section 8, it’s clear that the overarching theme is that the Federal Government exists to deal with issues that simply cannot be dealt with at the state level. National defense, regulation of foreign and interstate commerce, interstate post roads, immigration, bankruptcy, etc.

        At the time, the major point of contention regarding the tax and spending clause (where the much-abused “general welfare” phrase occurs) was that the antifederalists rightly anticipated the “Congress can do anything as long as it closes its eyes and says ‘general welfare’ three times” interpretation and on that basis argued against its ratification, whereas the federalists pointed out (rightly) that that was a ridiculous interpretation and (wrongly) that no one would ever be so stupid as to interpret it that way. If the “Congress can do anything” interpretation had prevailed at the time, the Constitution would not have been ratified.

        As far as I know, no one anticipated the total bullshit that is modern commerce clause jurisprudence. The only contemporary mention of it that I was able to find was a brief section in Federalist 42 which suggests that the primary purpose of the interstate commerce clause was to prevent states from interfering in interstate commerce, i.e. the “latent commerce clause” as it’s known nowadays:

        I understand that you want to impose your agenda nationwide without the inconvenience of building the broad consensus that would have been necessary to amend the Constitution. Well, you got your wish, and all it took was replacing the written Constitution with a panel of nine unelected judges. I can’t imagine how that could possibly go wrong.Report

      • Avatar Brandon Berg says:

        I’ve learned long ago not to eat or drink while reading anything political, James.Report

      • Avatar Mad Rocket Scientist says:


        It also give politicians wiggle room when unintended consequences put their feet to the fire.Report

  14. Avatar Jaybird says:

    So the general consensus among supporters is that this is old news?Report

    • Avatar Michael Drew says:

      I’m a little bit puzzled but that response as well. There are a number of points where I would think it would be just as easy to say that he’s clearly wrong.

      Even if the guy wrote the whole law, which he didn’t, it wouldn’t make him any more right or wrong in his understanding of the nature of the political pressures that were causing politicians to tell him what they were telling him to put in (and what to call it and how to structure it) and what they were telling him to take out. And that’s the kind of claim that is making big news from what he’s said.Report

    • Avatar Chris says:

      I admit I’m not sure why someone saying behind closed doors today what even the administration was saying in public 2 years ago is a gotcha moment. I say this as someone who really dislikes the law.Report

    • Avatar Michael Drew says:

      What are you referring to, Chris?Report

      • Avatar Chris says:

        I mean the Obama administration came out in ’11 or ’12 and said, “yeah, it’s a tax,” then they used that as a defense in court cases, including the one before the Supreme Court.Report

      • Avatar Michael Drew says:

        I don’t recall that. Obviously I recall them arguing (secondarily as you say) in the Supreme Court that the taxing power authorized the penalty. That’s not the same thing.Report

      • Avatar Chris says:

        This is what I was thinking of, though it’s 2010, not ’11 or ’12, so I was off.Report

      • Avatar Chris says:

        Argh, yes, sorry: I’m typing really fast while I look at numbers on another screen:

      • Avatar Michael Drew says:

        That link pretty much backs up the distinction I’m arguing for.

        Which I’d be happy to admit is pretty thin if critics would take off the table the dishonesty/flip-flop charge. It’s one thing to say that they actually changed their tune. It’s another thing to point to arguments that the vagaries of existing precedent makes advisable or winning legal arguments as contradictions of unencumbered affirmative characterizations of the bill/law. I don’t accept finding contradictions between those differing settings as a smoking gun.

        It was always consistent to have the position that, “We don’t view this as a tax because there is a mandate attached & we don;t want you to pay it but instead we want you to follow the mandate. We;re going to primarily defend it as a penalty in court. But lawyers will always make the best legal arguments available to them, and one of those will be that it operates enough lie a tax to fall under various precedents that would support it under the taxing power, or govern its ability to be challenged under the Anti-Injunction Act. We nevertheless maintain that it is not a tax, and you will search our legal briefs in vain to find us directly stating otherwise.”

        What politicians say when they are characterizing something freely in public as they want to characterize it is one thing; what the law forces them to say about it to defend it under existing legal precedent that they did not invent but have to respond to is something else. It never pays to try to mix those settings in order to find self-contradiction. It cheapens what it will mean to find actual comparable self-contradiction.Report

    • Avatar Mike Schilling says:

      The general consensus is that Gruber is entitled to his own opinion, just like anybody else.

      My personal opinion is that Gruber is the Owen Lattimore of PPACA.Report

  15. Avatar trizzlor says:

    Broadly speaking, Congress could function like a sports team or it could function like a courtroom. On a team, everyone presents their best ideas for how to move forward and honestly discusses the pros/cons; once an idea is chosen, everyone works together to make it succeed. In a courtroom, two sides frame their position in the most positive way they can without outright lying; an impartial jury chooses the side they feel is closer to the truth; after the decision, the losing side exerts all efforts to appeal and undermine the choice that was made.

    Most of the post-ACA debate has been people calling out bad teamwork: Democrats are monsters because they only presented rosy scenarios in crafting the law; Republicans are monsters because they’re trying to undermine the law now that it’s passed. If we accept that government ain’t a team, the relevant question is whether one side acted in an outright dishonest way. Does Gruber’s statement reveal some new dishonesty about the law?Report

    • Avatar zic says:

      Broadly speaking, Congress could function like a sports team or it could function like a courtroom.

      Personally, I think both are not desired processes. How ’bout a good marriage; where the adults in the room have to discuss problems, compromise, and work out actual viable solutions that promote the family’s well being?

      Why must it always be conflict and competition? That’s (in my view) much of the problem. ACA was covered as a horse race; who’s up, who’s down, and not as policy and how it might work.Report

  16. Avatar Barry says:

    I think that the people pushing #Grubergate pretty much admit that their position is not legitimately defensible. Under what circumstances[1] is the opinion of a consultant considered to be legally relevant to the validity of a law?

    I can think of one, in voter suppression, when the question is whether voters were being prevented from voting because of partisan politics or racial reasons (the later violates the Constitution, at least pre-Roberts). For this matter every word uttered by every party official, or every ‘consultant’ who advised a state government on how to keep people from voting would be relevant, as well as every private word uttered by every politician supporting this sort of slime.

    I have not seen the right talk this way, however.

    And I haven’t seen any arguments worth anything of how Gruber’s opinion matters in this case.Report

  17. Avatar Chris says:

    Looking back at old posts and their comment threads here, and you’ll find pretty much everyone admitting it’s a tax except a few conservatives (that would include some on the Supreme Court), a discussion of how the early language of the bill called it a tax, a discussion of the fact that the administration called it a tax after it was passed, and in fact used that as their “backup” defense in the court challenges, and so on. It’s weird that we’re still having this conversation, really, given that I was going back to ’09 and ’12 (during the Supreme Court case).Report

    • Avatar Chris says:

      By the way, here’s our most conservative author (remaining, at least), arguing in essence that calling it a tax is wrong:

      • Avatar Will Truman says:

        After the court ruled (and in some cases just before when it became apparent that the survival of the mandate might rely on it), the tide had turned. That actually covers most of 2010 to 2012.

        I’m not sure what you’re seeing from 2009, though. I ran across a post by Previous Will saying it was not a tax, and getting pushback. Kuznkicki’s post is gone, but this is relatively typical.

        It became a tax when it was convenient for it to become a tax.Report

      • Avatar Chris says:

        Mark was the tax person in 2009, along with old Will:

        There is also an even more fundamental flaw here – the interstate commerce clause doesn’t even apply to the extent that the mandate is accurately characterized as a “tax.”


      • Avatar Michael Drew says:


        I see a post by Previous Will saying it is a tax and getting pushback.Report

      • Avatar Will Truman says:

        Oh, I agree about Mark and Previous Will. The former (and maybe the latter, had he not left) was consistent throughout.Report

      • Avatar Will Truman says:

        Right. Was referring to the pushback.Report

      • Avatar Glyph says:

        Whatever happened to Prior Will, anyway?Report

      • Avatar Chris says:

        Also, you’re right, in the Will ’09 post, there was pushback (from Nob, Katherine, and Freddie; wow, this place has had some of its folks forever). I don’t see that at all in the ’12 posts, though I might be missing it.Report

      • Avatar Michael Drew says:

        Right, pushback saying it is not a tax. Which is what people are saying now, which Gruber is contradicting, which everyone else who’s informed disagrees with.

        What am I missing?Report

      • Avatar Will Truman says:

        MD, I was disputing the notion that there was a consensus here circa 2009 that it was a tax.

        I honestly don’t care that much about Gruber.Report

      • Avatar Will Truman says:

        Chris, by 2012 the sides that currently exist have been drawn.Report

      • Avatar Michael Drew says:

        No it’s not about Gruber, he’s just a timepost in the tracking of opinions. But you’ve said you care about the flip-flopping on the question by others. I’m not following the citations establishing that.

        To be clear, that 09 Will post is an example of liberals saying it is not a tax, right?Report

      • Avatar Will Truman says:

        Is it your position that at no point did liberals here argue that it was not a tax? Or that they never subsequently said that it was?Report

      • Avatar Michael Drew says:

        Neither. It’s my position here that liberals here are capable of getting things wrong, so that if they said that it is a tax (rather than that it operates enough like a tax to be treated as such for the purposes of Taxing Power precedent or Anti-Injunction Act precedent), it wouldn’t matter much.

        What’s the big deal about what people here say, anyway?

        But I am nevertheless interested in the things people have said here that have made you mad.Report

      • Avatar Chris says:

        I will say this: in ’09, as people were trying to figure the damn thing out, arguing over whether it was a tax made sense. Nob, in the comments to Ol’ Will’s post, makes actual arguments that it’s not a tax. By ’12, not calling it a tax made significantly less sense, because we’d all had time to think and talk about it.Report

      • Avatar Michael Drew says:

        I think not calling it a tax continues to make sense.

        Ideally, no one pays it. They define a high degree of success for this law by everyone getting health insurance and no one paying the mandate penalty. Even in the case of cigarette taxes, that’s not what going on with taxes. No one thinks the purpose of cigarette taxes is to get everyone to stop smoking altogether. A significant purpose of it is to collect revenue, and there’s no statement “everyone has to stop smoking” with cigarette taxes being the penalty for not doing so attached, unlike for this penalty/mandate.Report

      • Avatar Don Zeko says:

        I’ll do @michael-drew one better and say that, not only do I not understand what’s so significant about who said what on this site five years ago, I don’t understand what’s so important about it being considered a tax or not. It mattered to John Roberts for legal reasons that don’t make much sense to me, but for everyone else it’s still a law that raises taxes and increases benefits no matter how you classify the mandate.Report

      • Avatar Michael Drew says:

        It’s fair to say it increases taxes (though maybe the $250,000 pledge is still at stake if the mandate is not a tax?).

        But it matters to the extent you care whether it was lied about, regardless of how substantively important it is. That’s the claim; it’s at least in some cases likely to be one people care about if they’re bothering to make it.Report

      • Avatar Chris says:

        I was pointing out what was said years ago because I was saying earlier that we have had this conversation before.Report

      • Avatar Don Zeko says:

        @michael-drew Personally, I’m skeptical that anyone really cares that much about whether it was lied about, at least if the supposed lie was over whether the requirement to purchase health insurance was a tax or not. We’re not exactly looking at a “Saddam has WMD’s” level deception even if the most unflattering possible interpretation is true.Report

      • Avatar Michael Drew says:


        Right, and I’m saying if any of us used the time to think & talk about it to decide to call it a tax, that might have been in error.


        There are people who are saying they care.Report

      • Avatar Michael Drew says:

        …Btw, for all I know I may have been one of the people who made that error!Report

      • Avatar Will Truman says:

        I think the source of our disagreement is that to me, arguing “In short, the minimum coverage provision is a tax in both administration and effect” is mutually exclusive to arguing “it’s not a tax.”

        Regarding why it annoys me so, it’s because it’s the exemplar of one of the things that annoys the heck out of me when it comes to discussing political issues. Whether it was a tax should not have changed between 2009 and 2011. Getting caught up in a debate with a group for lending credence to what they were previously saying… I find that maddening.

        (And, for the record, my appraisal of the right during the health care bill and afterwards is much, much more harsh. That doesn’t change this.)Report

      • Avatar Michael Drew says:

        it’s the exemplar of one of the things that annoys the heck out of me when it comes to discussing political issues. Whether it was a tax should not have changed between 2009 and 2011. Getting caught up in a debate with a group for lending credence to what they were previously saying… I find that maddening.

        I don’t really know what you’re saying who did here.

        Your position on “administration and effect” is certainly reasonable. For me, “administration and effect” omit “intent” and “actual legal form,” which save the contention. But either view is certainly reasonable.

        It doesn’t mean people lied or even changed their position, though, especially if you give any allowance for my free public statement/vagaries of law courts distinction, which I really think you should. The main point is, you were always free to look at it and decide for yourself if you thought what people were saying about it was reasonable. It didn’t change; what they were saying at the time didn’t change. I don’t even see where it’s established that what people subsequently said changed (but I’m guessing you’ll be able to provide that at least as regards what people here said). In your view there was an initial mischaracterization and that’s very fair and you disagreed with others at the time defending it. But I’m not seeing how that was subsequently compounded. Are you just referring to the legal arguments? Or what was said here? I’m not sure why it (that which compounds the initial mischaracterization in your view, in particular) rankles so.Report

      • Avatar Will Truman says:

        I’m pretty much out of words to express what I am trying to without repeating what I’ve already said. I think a lot of it hinges on the distinction you make that I really strongly reject.

        One of the big reasons that it sticks to me as it does is that it was a part of a series of things that halted what was, at the time, a pretty strong partisanal lurch from the center-right to the center-left. A reminder that the left was not, actually, as behaviorially great (and as different from the right) as I had increasingly been coming to believe.Report

      • Avatar Michael Drew says:

        I don’t mean to be dense, but in terms of that passage, I just genuinely am not sure I know who you’re talking about. But it’s not very important. Have a good day.Report

      • Avatar DensityDuck says:

        Just in case you’re actually wondering, what Will is upset about is the way that we’d been told that the mandate was not a tax, was never a tax, wasn’t even concieved of as a tax, and that it was a pointless attempt at distracting us from the real issues to say that the mandate was (NFIB v. Sebelius happens) anything other than a tax, that it was always a tax, that it had been a tax right from the very start, and that it was a pointless attempt at distracting us from the real issues to say that the mandate was anything other than a Constitutionally-permitted use of Congress’s power to tax things. And Oceania had always been at war with Eurasia.Report

      • Avatar Michael Drew says:

        Yeah, he’d pretty much said as much. I’m still asking who did all of that, though.Report

  18. Avatar Citizen says:

    (c) mainly on the basis that the ACA appears to be a white elephant gifted to “the people” by the Democratic party. The Democrats will milk alot of positive propoganda play by strolling the beast out on occasion giving the illusion of a gift to humanity.

    The Republican/Corporate interest will abstain from dynamiting the beast because they will collect handsome rents in feeding, washing and sheltering the thing for another 40 years. As the mandate/tax thingy continues to grow, more rent will come from the jailing of the noncompliants.

    It will eventaully become background noise to every foreign event to which the politicians all harmonize: “Squirrel!”Report

    • Avatar Don Zeko says:

      “(c) mainly on the basis that the ACA appears to be a white elephant gifted to “the people” by the Democratic party. The Democrats will milk alot of positive propoganda play by strolling the beast out on occasion giving the illusion of a gift to humanity.”

      Isn’t “a white elephant gifted to ‘the people'” another way of saying that the Dems passed what they thought was good policy that would improve the lives of average Americans? They may have been mistaken about that, but I’m having a hard time seeing what’s nefarious about all this. Although it sure sounds kind of nefarious if you use a sneering tone and a bunch of pointless metaphors, I’ll grant you that.Report

    • Avatar North says:

      The general definition of white elephant is a costly project that produces no significant good. So far the ACA appears to have come in pretty much at (or below) projected costs and has produced a laundry list of goods despite frenetic opposition by the GOP and inexcusable errors by Obama’s administration (the rollout fiasco). I question the applicability of the term if you’re trying to attach it to the ACA.Report

    • Avatar Major Zed says:

      Citizen: thanks for answering the question!Report

  19. Avatar dhex says:

    the sports bar ist kreig.

    never forget that, and you’ll never be puzzled by american politics ever again.Report

  20. Avatar North says:

    My response is generally well encapsulated by Chait’s analysis (Saul linked it above). Even during the debates as the ACA was being formulated and passed this all was pretty common knowledge for everyone who was paying attention to the matter. Gruber the Gaff fire hose appears to simply be stating in bald and unflattering language the general MO of passing anything at all on Congress these days. Very little that is revealed here is anything even approaching new though it’s presented in a manner that will allow the right wing and the libertarians to repackage and inveigle about it for a good long while which is good for them I guess.

    So as a lukewarm supporter of the ACA what do I feel? Mostly relief that a bill crafted in its circumstances turned out as well as it did. I feel some deep bitterness towards Obama for his botched rollout; I would submit by far his most inexcusable error in office and the one that most likely cemented the 2014 results in stone. If the rollout hadn’t been botched I think his approval rating would be near 50 rather than near 40 and that would have made a lot of difference.

    I do want to muse on how the ACA was passed a bit more because really this entire story is about the right snarling over the tactics that were used to get the ACA through while the left is either providing cover (the ideological minority) or shrugging and saying that’s politics (the majority). It bears repeating that the ACA was passed in a congress where the GOP had consciously decided (by their own admission) that no matter what Obama and his party proposed they were going to oppose it. Every element in the ACA we are criticizing stems from this fact. Obama, as was his wont at that point in his presidency, was trying his “new politics” of preemptively giving his opponents concessions and then hoping they’d meet him half way. The initial starting point of the ACA originated this way. We have a Democratic President literally scrapping his own party and ideologies plans for health care reform and adopting whole hog the plan of their opponents from the last time the subject was active. We have that same group of people realizing (at the eleventh hour) that they were going to get absolutely nothing from their opponents for this and that they somehow had to pass the GOP’s old plan using only Democratic party votes. Again I reiterate that considering how little constructive policy debate & horse trading was going on between the politicians it’s a marvel the ACA works at all.
    Everything Gruber talks about in his speeches is simply politics as usual in this environment and to be expected. There’s no genuine cause for special indictment or fury here, just weary recognition of facts on the ground.

    Now speaking personally I’ve resented Mcconnell for a number of years for orchestrating (by his own admission) this strategy of blanket resistance but over time I’ve come to grimly accept that any other path would have required the GOP to be either more stupid or more virtuous then it is. Obama ran on his unicorn drawn platform of bipartisan hope and change which basically rolled out a new promise that in practical political terms he could gain enormous benefit from any cooperation he got from the GOP- even if it was perfectly normal cooperation. So the GOP faced two choices: either cooperate as usual and strengthen Obama enormously or adopt a strategy of unprecedented obstruction to deny him this benefit with the added bonus of getting to take him to the policy cleaners while he tried to govern up to the rainbow spackled platform he ran on. They chose the latter and the electorate has rewarded them for it. So on one hand I can actually muster an irritated anger at Obama for running in this manner.

    But then I think about his own election; the whole shtick Obama assumed was necessary. It was necessary to beat Hillary Clinton- he wasn’t going to overturn her by running as a black John Edwards which is really all he had if you stripped away the whole new politics hope’n change stuff. Now sure the lady ran a bad campaign (may Mark Penn burn in hell forever) but it was all that googoo inspirational stuff that really fired up the caucus based strategy Obama ran on to create the openings in the early races that caused media adulation to rush in and power his campaign. So did he want to be president in 2008? Yes, yes he did so this is the mandate he ran on.

    But (again but) before I can work up any annoyance at that can I honestly say Clinton would have come into office with a Senate super majority? No. Come on now, no. Not without hope’n change. I don’t see it. So potentially Clinton could simply not have gotten the ACA had she been elected with Obama nowhere to be seen. Then again, the GOP would not have had (quite as much) incentive to adopt absolute opposition if Hillary had been elected on her more standard boring agenda.

    So we have what we have. The GOP tried to play for all the marbles on the ACA. It was an audacious plan- to try and derail it with a minority in the house and a super minority in the Senate. They lost and everything since then has been a foot stamping fit over having lost. One thing I’m confident of- the ACA isn’t going anywhere unless the GOP actually rubs two brain cells together and produces an actual alternative. I put the odds of that somewhere around the odds on Jesus rising from the dead and becoming a yoga instructor. How do I feel? Half way between C and D really. Cynical mostly.Report

    • Avatar Michael Drew says:

      You think McConnell would have felt he had less incentive to deny President Clinton a bipartisan comprehensive health care reform law than he did Obama?

      You realize that this means you’re contemplating a situation in which Clinton would have been even more involved in and staked to the enterprise of forging Postpartisan Happiness Unicorn Rainbows with these Republicans than you criticize Obama for being?Report

      • Avatar North says:

        No Michael, Clinton very emphatically did not run with Hope’n Change as her signature banner goal; Obama did. Clinton didn’t put bringing in a new kind of politics to Washington as the centerpiece of her administration; Obama did.
        Now I think Obama successfully met the voter bar on those promises: he successfully placed the blame for the failure on his opponents but he had to virtually give away the farm; the ACA, the stimulus, the absolutely disasterous 2011 deal on the budget, to do so.

        Now I would never say that Impending majority leader Turtle-man would have had no incentive for absolute opposition to Clinton but I am saying that the way Obama ran and won made absolute opposition to him an especially attractive political option. All the GOP had to do was refuse to compromise and Obama would lose according to his own campaign measuring stick.Report

      • Avatar North says:

        This doesn’t, mind, excuse the GOP for their nakedly cynical and harmful choice to run absolute opposition. It was terrible for the country and I’d submit terrible (in the long run) for the GOP and played to their worst elements and impulses. It was despicable but also strategically understandable.Report

      • Avatar Michael Drew says:

        No, but you’ve criticized him for how much he worked to get bipartisan buy-in on ACA. It would have taken Clinton just as much work, but now you seem to be offering it as a good or at least okay scenario. In reality, any president was well-avised to do just about as much as he possibly could to get it (but not in the end let not getting it derail comprehensive reform). But Hillary would have faced no less resistance to letting it happen having run as more of a partisan than Obama got having run with a few universalist gracenotes in his messaging.

        Generally, you put WAY too much emphasis on Hope n Change. Obama ran clearly as a Democrat with liberal ideas, and it would have been just as rational to deny Clinton bipartisan success as it was to deny Obama.Report

      • Avatar Kim says:

        Mike Drew,
        Or, to put it another way: I don’t think the Republicans would have minded being crossed off the Clinton’s Christmas list much.Report

      • Avatar zic says:

        @north, this is very insightful; but it’s a criticism that cuts both ways, no? Obama ran on a promise that he would try to be bipartisan. It also an indictment of people elected to govern, when they only define success as denying him this victory at the price by governing. We know the oil’s leaking and the engine’s going to blow, but we’re not going to do the maintenance required to keep the ship of state floating. Your on your own, Obama, you’re the captain. Victory is helping you fail.Report

      • Avatar North says:

        @zic I agree entirely. That the GOP elected to pursue that strategy says very little good about them. It is abundantly clear that damage to the nation was a price they were eminently happy to pay so long as it resulted in failure of Obama.

        Mike, I do agree that the GOP would have had similar incentives to stymie Clinton but I think the scenario would have been different in how Clinton would have been considerably more free to respond to that.
        Clinton, for instance, did not run on bringing a new kind of politics to Washington so while the GOP may well have decided to go hardball a Clinton administration would have played hard ball right back at them.
        Obama spent much of his first term getting kicked in the groin politically while plaintively telling the GOP that this wasn’t productive and he was pretty much stuck in that posture by his own campaign promises and general election theme. It wasn’t until (by my measure) the 2010 electoral mess and the absolute disaster of the sequester deal that Obama realized he was getting fleeced by the right and was on the verge of mutiny from his own base that he started playing real politics back at the GOP.

        Now there are a lot of ways Clinton may have been a worse Presidential outcome in 2008. Foreign policy, for instance, she’s awful hawkish for my taste. Also I think that had HRC won the primary I don’t think the Dems would have had as big a majority in the Senate or House.

        Kicking HRC in the ass would have definitely been to the GOP’s taste but Obama had piled extra incentives onto himself to (unintentionally ) encourage them to do it to him. You’ve read McConnel’s interview yes? The man flat out said “we looked at the promises he made and the things he ran on and realized that all we had to do to beat him was simply block him from getting even token cooperation from out party.” The moderate GOP senators probably could have opened a ghost ranch with all the severed horseheads that leadership must have been leaving on their doorsteps.Report

      • Avatar Michael Drew says:

        Maybe we disagree about whether it would have been a good thing if Hillary’s efforts to negotiate had been dramatically more truncated than Obama’s in addition to disagreeing about whether they would had been. And it doesn’t matter to me why McConnell says he got the idea of preventing bipartisan success from; I don’t believe his efforts at it would have been less with either president. Nor do I think you have any real idea what Hillary’s hard ball in response would have consisted of. Further, you have no good reason to think that Obama was constrained in how he chose to respond to Republican noncooperation because of a promise he made about bringing a new politics to Washington. The reality is that it would dh ave been much better for the country had Obama or Clinton been able to bring some Republicans on to the basic structure of ACA, so much so that it defies credulity to think wither wouldn’t have gone to extreme lengths to do that. They’re both good people and would have realized it was the right thing to do for the country.Report

      • Avatar Jesse Ewiak says:

        I think people’s fantasy booking of Clinton’s Presidency is kind of silly. Obama and Clinton weren’t that far apart on policy and likely, her Cabinet would’ve looked a lot like Obama’s Cabinet, absent a couple of names.

        But, the gameplan of the GOP would’ve been the same. Obstruct. And I’m betting the media still wouldn’t have explained to the average American about the GOP obstruction.

        In this alternate world, people are making posts about, “if only Obama had won, maybe he would’ve been able to negotiate with the moderate Republican’s and made a deal with them instead of the hardball pose Clinton took.”Report

        • Avatar Michael Drew says:

          …or maybe they’re even saying, “There’s no way Obama would have gone on that long looking for compromise with an opposition clearly only interested in obstruction the way Hillary did. He seemed way too smart for that.” That indication of alternate-Obama’s relative likelihood to seek compromise compared to an actual President Hillary’s attempts at it is about strong as our indication that Hillary would have broken off seeking it that much earlier from Obama having a bit more rhetoric early on in his campaign about unification. Had Hillary made it to the general election, believe me, there would have been plenty of talk about unity.Report

      • Avatar North says:

        Well I certainly wouldn’t say President HRC would have been better. In my mental scenario she probably wouldn’t have had a super majority so if the GOP had gone full opposition she may well not have even been able to get the ACA.

        But I don’t think she’d have done Obama’s preemptive concessions maneuvers either. That was a uniquely Obama thing.Report

      • Avatar DensityDuck says:

        If nothing else, President Hilary probably wouldn’t have come into office expecting that when she said “frog”, Congress would jump and then ask “how high?”Report

    • Avatar Wardsmith says:

      @north you do realize that the ‘despicable’ method deployed by the GOP when they faced a super majority Congress And president was one they had learned of so well during the Bush administration when the minority democrats were as completely obstructionist as they could possibly be? The strategy clearly worked for them as it now has for the GOP.

      You’ll recall that old saw about the body parts arguing about who should rule? The eyes say it should be us because only we have the vision to lead, the mouth says only I can communicate, the brain says only my wisdom can carry the day and while they are all arguing the brain says why does my head hurt? The eyes are blurry the mouth is dry and the body seeks out the problem only to find it is the bowels have stopped working.

      Morale of the story? You don’t need vision, intelligence or good communication skills to lead, you just need to be an asshole.Report

      • Avatar North says:

        That’s, respectfully, a crock Ward. Bush’s massive tax cuts, Bush’s Medicare part D expansion, Bush’s education reform and Bush’s wars all received some Democratic votes and roughly the normal level of filibustering. Obama’s pretty much been at default requiring a super majority for his entire presidency.Report

      • Avatar zic says:

        Ah, @wardsmith 10 judges of 218 were filibustered.

        Now go look up and the record for the Republicans during Obama’s term. Here, I’ll help you, on a fact-check of Harry Reed crying this as a problem:

        And this does not account for a change in how the Senate operated; that real, honest-to-god filibusters don’t actually happen; people call ‘cloture votes’ a filibuster (it’s the threat of one, not an actual one), and it was so common that the Senate, which is, constitutionally, supposed to rule by majority, was repeatedly referred to as needing 60 votes to do anything. Because, you know, the GOP obstructed.

        You may honestly say, yes, BSDI. But there is a matter of degree. And there, the GOP takes the cake.

        But I wonder, how’d you feel abut Dems actually doing this to the next Republican president? Why shouldn’t they act just like the GOP? Seems you’re going to accuse them of it, no matter what, so why should the cooperate? That’s the seeds that the Republicans have sown; and it promises a bitter harvest.Report

      • Avatar Wardsmith says:

        Exactly, both sides do it. Jaybird had the perfect response here and I apologize this is an iPad so I can’t just grab the comments’URL directly

        As to degree another story. A politician is asked to have sex for ten dollars. No way. Asked for a million dollars. You bet. Conclusion, they are all charlatans and whores.Report

      • Avatar North says:

        You can argue a bit on the subject of judges which Zic has ably addressed but you still haven’t answered the point about legislation. The last Republican President did not face blanket opposition on his various legislative projects that Obama has with the GOP.Report

      • Avatar zic says:

        @wardsmith this isn’t politicians having sex, it’s politicians doing the work they’re elected to do. Understaffed courts create burdens in real people’s lives. Department heads that aren’t replaced create problems. This is not to mention the long waits and scrutiny that people who agree to go through the confirmation process experience; often putting their lives on hold while Republicans just stall for the sole purpose of not-Obama. That’s freakin’ rude.

        Again, would you be happy to have Democratic politicians do this stuff in a Republican administration? You gave a link showing that this had happened 10 times during the Bush-Cheney administration. It’s business as usual for Obama and the Senate. It means that any position important enough to require senate confirmation is being used as a political tool to make points, not because the nominee isn’t fit or capable for the job; the legitimate reason to do this. The degree does, in fact, matter. It matters a whole lot.Report

      • Avatar Wardsmith says:

        North I could argue about filibusters in general or point you here
        But you’re missing the point. The party out of power has been playing these games since it was Whigs and Torrie’s. The internet has given more people visibility into what was previously an inside game.

        Harry Reid has allowed virtually Nothing passed by the House to even get a vote in the Senate for four years. You probably call this Hooray for our side! You also are missing the forest for your favorite trees. Obstruction can take many forms. Is the system increasingly broken? Can I get an amen?Report

      • Avatar North says:

        Harry Reid has been the majority leader for that period of time Ward. Such behavior is the prerogative of the majority leader just as the GOP majority leader who preceded him similarly declined to act of legislation emanating from the House that he didn’t like. What the GOP did during Obama’s term was of a kind with what both sides did before but at an entirely unprecedented scale. I understand why they did it but I still think it was despicable and far from business as usual.

        That said, it’s hard to say with any certainty that the electorate considered it a major issue so there is that.Report

      • Avatar James Hanley says:

        If I may interject, what the hell is so sacred about the President’s legislative agenda? Congress is the legislative branch. It’s true that the President is–constitutionally–part of the legislative process, from the State of the Union to the authority to propose legislation to the veto, but the President is not constitutionally privileged to have their legislation passed, or even to be given serious consideration.

        McConnell absolutely refusing to consider the President’s proposed bills is neither better nor worse than Reid refusing to consider the House’s passed bills (or McConnell refusing to consider the Senate’s passed bills).

        This overprivileging of the President just reinforces the on-going shift in authority from legislative to executive branch that is moving the country down the path toward pure executive government.Report

      • @james-hanley ,

        Does the president really have authority to propose legislation? I know that in practice, he does all the time, and we hear talk about “the administration bill to do x, y, and z” and “the president’s budget.” But I had thought that as a technical matter, he couldn’t propose on his own authority and he needed it to be sponsored by a congressperson.

        Not that the right answer means anything one way or another. But I was just curious.Report

      • Avatar James Hanley says:


        Yes. Article II, section 3.

        He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; (emphasis added)

        But I’d imagine that even absent that, Presidents would have done so, particularly when they had support in Congress.Report

      • Thanks, James. To the extent I had ever thought about that passage at all, I had interpreted it differently.

        I had thought the passage authorized the president to do something more along the lines of saying, “hey, it would be great if one of you congresspersons introduced a bill to do x.” Your interpretation–and for all I know, the standard, accepted interpretation–seems to be that the passage allows the president to draw up any bill (unless it’s an appropriations bill?) and submit it for consideration, death-by-committee, a yea/nay vote, etc.Report

      • Avatar LeeEsq says:

        @james-hanley, there is nothing particular sacred about the President’s legislative agenda but if Congress refuses to do its job and legislate for various reasons or the minority party decides to use every procedural tool it has to stymie the attempts of the majority party to legislate than you have a situation that puts more power in the hands of the Presidency because Congress can not or will not function as it is supposed to.Report

      • Avatar Michael Cain says:

        Current rules require bills to be introduced by a member of Congress. What happens if no member is willing to sponsor a bill that the executive drafts? Or in the case next year, if the leaders of the two chambers simply assign such bills to committees where the chairs never brings them up? I suppose either of those is “consideration” of a sort.Report

      • Michael Cain:

        As far as “consideration” goes, that’s what I was thinking of. Of course, if a measure doesn’t have the support of even one or two congresspersons, let alone a majority, then it probably doesn’t really matter whether the president has the authority to submit legislation.Report

      • Avatar James Hanley says:

        but if Congress refuses to do its job and legislate for various reasons or the minority party decides to use every procedural tool it has to stymie the attempts of the majority party to legislate than you have a situation that puts more power in the hands of the Presidency because Congress can not or will not function as it is supposed to.

        Are we so sure about how Congress was meant to function? One of the justifications for splitting it into two chambers was to constrain it. And I certainly don’t think it’s function is to legislate just because one passionate group in the country wants policy X. I’d argue that part of Congress’s job is to not legislate, if they think X is bad policy.

        And I really don’t think there’s any current issue so great that we’ll have a great national crisis if we go a couple of years without addressing it. The system was designed to grind slowly, and grind slowly it does.

        What happens if no member is willing to sponsor a bill that the executive drafts?

        I think a president who can’t find even one member of his/her party to sponsor a bill for him/her has bigger problems than not being able to get their policy agenda through Congress. 😉

        Or in the case next year, if the leaders of the two chambers simply assign such bills to committees where the chairs never brings them up? I suppose either of those is “consideration” of a sort.

        Yep. It happens not infrequently, I’m sure, although I have’t done the study. Every bill generally gets assigned to a committee as a matter of due course, but there is no due course in the committee chair’s manual requiring them to bring a bill up for substantive consideration, or even a vote of whether to give it any more consideration. They get too many bills to actually work substantively on them all, anyway.

        So I don’t see anything politically wrong with committee chairs sticking disliked presidential bills at the very end of the agenda, in the “if we get through every other bill that we actually care at all about, then we’ll get to your bill.

        As a general comment, not directed at either Lee or Michael, we should remember that the actual legislature of this country is now controlled by Republicans. Are we willing to say that the President has a duty to not obstruct them? That seems silly, given that he has the veto, but put into the political terms that have been offered, if the Republicans do try to govern, to pass actual substantive legislation, shouldn’t the President try to govern, too, by accepting it? (Letting it pass into law without his signature, rather than signing it, would be sufficient.)

        But if we’re not willing to place the same responsibility on the President as on the congressional majority, how do we justify doing so?Report

      • I can’t speak exactly for what Lee intended when he made his comment, but if the Congress would (or could) flex its muscle, it might check some of the president’s power. When Congress refuses (or is unable) to do so, then the president tends to govern by executive decree, regardless of whether it’s right that he do so.

        None of this means that I believe the Congress has any special obligation to entertain the president’s legislative agenda, as some commenters here (mostly by implication and perhaps not fully intending to) seem to suggest. Also, I do recognize–by my use of “could” and “is unable”–that a lot of this dysfunction, if it’s appropriate to call it that, is baked into how the system is supposed to work. The result, however, seems to be a strengthening of the imperial tendencies in the executives.

        Also, and to beat my quibble more than I ought, can you think of any actual bill that was ever introduced on the president’s own authority? I’m not a Congress-watcher, so maybe such things are common, or if not common, maybe the examples are obvious. But I’m still not convinced your (and for all I know, others’) reading of that “state of the union” clause is the correct one.Report

      • Avatar Will Truman says:

        Are we so sure about how Congress was meant to function?

        Yeah. How do we define congress doing its job? It seems more than reasonable to me that if and when they don’t hold votes on appointments, temporary appointments seem perfectly reasonable.

        On the other hand, “Congress won’t pass the immigration reform bill I want and so I will just do it anyway” is something of a different matter. Because it’s not congress’s job to pass the immigration reform bill that the president wants.Report

      • Avatar Michael Cain says:

        Every bill generally gets assigned to a committee as a matter of due course, but there is no due course in the committee chair’s manual requiring them to bring a bill up for substantive consideration…

        When I was working for the Colorado legislature, one of the things I liked was that the state supreme court’s interpretation of a citizen-initiative amendment to the state constitution requires every bill introduced to get a hearing, including an opportunity for public testimony, at least in committee (the budget Long Bill is handled somewhat differently, but the opportunity is still there). Leadership can block a bill that is approved in committee from getting a floor vote, but that’s pretty rare. Of course, that’s workable because of the limited session, the limit on the number of bills a member can introduce, and the deadline for introducing bills (without obtaining special permission).Report

      • Avatar Michael Cain says:

        …but put into the political terms that have been offered, if the Republicans do try to govern, to pass actual substantive legislation, shouldn’t the President try to govern, too, by accepting it?

        Assuming the Senate Dems don’t filibuster it, I expect the Republican Congress to pass a one sentence amendment to the Clean Air Act: “For the purposes of this act, carbon dioxide is not a pollutant.” Effectively, that dismantles the latest round of CAFE standards and the impending regulation of power plant emissions. While the regulatory push started with a bunch of blue states suing the EPA during the Bush years, regulation of CO2 is one of the far-reaching signature achievements of the Obama administration. Should the President, who clearly believes regulation of CO2 is important, defer to Congress on the matter?

        This is another of those us vs. them red state vs. blue state things. The blue states that filed the suit back then have largely made state-level decisions already that will bring them into compliance with the EPA’s CO2 goals for power plants. The red states that oppose are having those decisions forced on them. Does the President have some responsibility to support the states that elected him twice?Report

      • Avatar James Hanley says:


        I would break that sentence into two parts and call the second one the “Consideration Clause” (although I don’t think that term is actually used–nobody seems to talk about that clause much).

        Anyway, I think it doesn’t specify a mechanism for how the President can recommend issues for Congress’s consideration, but it says that it’s appropriate for presidents to do so. In fact if the “shall” at the beginning of the sentence applies, it would seem to be mandatory, or at least an exhortation to do so. Attach that to the Article 1 clause allowing each chamber of Congress to set their own rules for procedure, and that’s how we end up with Congress accepting presidential bills, but through a mechanism of their specification.

        I’m stepping out on a limb a bit here, since I’ve not really read any research on this. It may be out there, but presidential bill submission is so generally accepted that I don’t think there are many people really dissecting it in this kind of detail. That’s not to dismiss your interest, understand! I think it’s an interesting question, and in part that’s because nobody talks about it much, so it’s probably not well understood generally (and as I said, I’m stepping out on a limb–maybe I don’t really understand it, although I think my explanation is satisfactory to the issue).Report

      • Avatar James Hanley says:

        Of course, that’s workable because of the limited session, the limit on the number of bills a member can introduce, and the deadline for introducing bills (without obtaining special permission)

        I was wondering how it was possible to hear ever bill, until you gave this explanation. Either chamber of Congress could limit themselves this way, of course, and arguably they ought to. But it would take away some of Congressmembers’ ability to pronounce to their constituents that “I introduced legislation to do this, and that, and these things over here, as well as a whole bunch of other really really important stuff whose mere mention should cause you to vote for me again.” But I’m not really sure that being limited to “I sponsored legislation to do….” would negatively affect their re-election chances, so conceivably they could be persuaded to do likewise.

        I wonder, though, if term limits has something to do with willingness to accept such constraints? I’m not a fan of them, but I can see them leading a person to view him/herself more as someone who’s temporarily in this legislature, as opposed to having a glorified view of themselves as special and therefore not to be constrained.

        Should the President, who clearly believes regulation of CO2 is important, defer to Congress on the matter?

        Exactly. And if we believe not, how could we possibly justify applying a different rule on deference to Congress? And how many of us would be consistent with that when the team jerseys change around?Report

      • Avatar Wardsmith says:

        In today’s political two party system the president is considered the leader of his party. Therefore the ‘president’ introducing a bill is little different than a party last of the minority introducing a bill and attracts about as much attention.

        @zic given your obtuse reading of my post I recommend you read ‘A Parliament of Whores’. You ought to find it as titillating as ’50 shades of Grey’Report

      • Avatar Michael Cain says:

        I wonder, though, if term limits has something to do with willingness to accept such constraints?

        That’s a reasonable question, although I believe the restrictions predate Colorado’s adoption of term limits for the legislature. I suspect it has more to do with the 120-day session, since there are also strict deadlines for when bills have to reach various steps in the process (which was a serious pain in the ass for me the session I had to manage the House Appropriations Committee calendar). I think the message to members is basically “be prepared when you arrive in January.”

        And how many of us would be consistent with that when the team jerseys change around?

        Well, those of us who think that losing too many elections should have consequences :^)Report

      • Avatar James Hanley says:

        although I believe the restrictions predate Colorado’s adoption of term limits for the legislature.

        I wondered about that. Not good for my thesis if correct. 😉

        I suspect it has more to do with the 120-day session, since there are also strict deadlines for when bills have to reach various steps in the process

        That’s certainly an incentive to not spread yourself too thin over a bunch of bills, most with no chance of passage, I would think.Report

      • James,

        Thanks for your answers (and your patience). The main reason I’m such a pickle about it is that the idea of the American president being able to introduce bills on his own authority is just very novel to me. I understand, for example, that presidents in other systems–e.g., the French–can introduce legislation on their own authority, but I just didn’t/don’t know/believe that the US president can.

        On some level, it’s perhaps an issue of what constitutes authority and what the intention was behind the framing of the “consideration clause.” If we are talking about original intention, it’s my understanding that the framers would have wanted to use the example of the King. And I understand the King couldn’t initiate legislation into the Parliament, but rather could give his assent or decline to give his assent to the bills parliament passed. But all this is way out of my pay grade.

        But I’ll back off and just agree that I don’t know and I’ll agree further that as a practical matter, it’s probably not that important. Presidents gonna preside, and (I guess) legislate.Report

      • Avatar LeeEsq says:

        @james-hanley , @gabriel-conroy is interpreting correctly. Congress was given certain powers and responsibilities under the Constitution. When these powers and responsibilities are not exercised than Presidents tend to rule by using whatever means they can and placing more power in the Presidency. We see this most frequently when it comes to security issues or foreign affairs. Real problem or at least problems perceived by the President as real aren’t going to disappear simply because Congress refuses to act.

        I also presume that Congress was intended to pass legislation of some sort on important issues and problems since they were given the legislative power.Report

  21. Avatar James Pearce says:

    Still a solid “D) Supportive” so take this with a grain of salt.

    Supporters of ACA have had many reasons to bite their nails. It could have been undone in Congress before it reached the president’s signature. It could have been dismantled by the Roberts court instead of being upheld. It could have been dismantled during a Mitt Romney presidency.

    None of these things happened. Obama retains his political and legal “victory” on the ACA, and let’s be honest, will until at least 2016, and most likely beyond. Even in a post-Obama environment, repealing ACA will need a legislative super-majority, an executive signature, and (more importantly) the political will.

    In that context, these Gruber videos mean nothing. They should be ignored, not proffered as part of the argument.Report

    • Avatar Major Zed says:

      Thanks for answering the question! And for the record, I did not intend to imply that the Gruber statements had any bearing on the issue of ACA being a good or bad law. That ad hominem argument is in the bailey I’m staying out of here. The OP was about the process of getting there.Report

    • Avatar DensityDuck says:

      The reason that the Gruber videos mean something is that we’re about to have a big Supreme Court case over a claim that the plain language of the law cannot possibly mean what it looks like it means. And, of course, the first question asked will be “well what does it mean, then”. And people will present evidence to support their answer, and some of that evidence will be the statements made by the people who wrote the language in question.

      And so it does mean something, although what it actually means will vary depending on the outcome of the case. Maybe you’re right that the Court hasn’t got the guts to turn poor grandmothers dying of cancer out into the street. It’s certainly a hard argument to support. But in that case, what Gruber’s statements mean is that we have yet another example of how everything the Democrats have said for the last ten years was bullshit.Report

      • Avatar James Pearce says:


        “what Gruber’s statements mean is that we have yet another example of how everything the Democrats have said for the last ten years was bullshit.”

        Does it, though? If one was previously inclined to believe in a decade of bullshit from Democrats, yes, I can see how this confirms that.

        But as Steven Taylor said over at Outside the Beltway:

        “If anything, my ongoing study of political institutions indicates to me that major policies are not obliterated, or even much affected by, political gaffes committed at panel discussions.”

        The Gruber videos mean that if there’s a flash of light, we’ll look. But that’s about all they mean.Report

      • Avatar James Hanley says:


        Setting aside ACA and a focus on any particular party, doesn’t Steven Taylor’s comment suggest that bullshit is in fact more likely precisely because it doesn’t affect policy?Report

      • Avatar Mike Schilling says:

        some of that evidence will be the statements made by the people who wrote the language in question.

        And that group does not include Gruber.Report

      • Avatar James Hanley says:


        I don’t for a second think Gruber’s speako resembles anything like a smoking gun. But likewise it doesn’t seem reasonable to me readily believe that all his post-speako denials/clarifications are smoking guns, either. People sometimes clarify prior statements, and they sometimes lie about prior statements.

        Gruber has contradicted himself, and it looks to me as though whether one believes the speako or the denials/clarifications depends almost wholly one one’s ideology, rather than on any solid evidentiary basis.

        [I make no claim to have a position in favor or one or the other interpretation. I think every bit of what he said and what others are saying about what he said is just cheap talk; there’s nothin’ that proves nothin’ for either side.]Report

      • Avatar Mike Schilling says:

        I don’t know what to make of Gruber’s original statements. He might actually have known something about what the bill’s authors were thinking, he might have been making educated guesses, or he might just have been talking to hear himself talk. As you say, the videos tell us nothing we didn’t already know, so we’re all free to interpret them in the light of our existing beliefs.

        And the meta stuff about “Are you or have you ever been a member of the Gruber fan club” is, forgive me, just wacko.Report

  22. Avatar Michael Drew says:

    I just genuinely wonder how Gruber feels about his own efforts at public communication about ACA. I mean, presumably he’s a supporter, and I think that it’s pretty clear that, even if we grant elements of truth in every single thing he’s said about it, the amount of truth telling he could have done wouldn’t have had to be diminished whatsoever even while it could have been told in a way that put the law, its passage, and those currently trying to make it a relative success in a lightly less harsh light. (Some might disagree with that.) I just wonder if he’s somewhere thinking to himself, “No, yep. Sure, I publicly admitted I misspoke, but in reality that’s as good as I coulda said that. You know, I actually think I’m a helluva salesman. When’s my next panel appearance?”Report

  23. Avatar Wardsmith says:

    I see 225 comments that focus on lying and birth sides do it while no one has mentioned the very specific Reason for the lie in the first place! It was very specific in the video, to Game the CBO ‘score’. That was the big lie and I leave it as an exercise for Hanley’s students to tell us Why that was important at the time.Report

    • Avatar Don Zeko says:

      But how does that game the CBO score? It brings in the same amount of revenue whether it’s a tax or a penalty, so how could it affect the CBO’s projections of the deficit, sign-up rates, etc?Report

      • Avatar Will Truman says:

        I’m guessing because tax collection rates are scored higher than fine collection rates. But we’d have to ask Gruber.Report

      • Avatar Wardsmith says:

        There’s a little bit here:

        Google for articles at the time of passage and you’ll see a number of them talking about legislators waiting for the score for (cover) help making their decision.Report

      • Avatar Stillwater says:

        Ward, I’d say two things about that.

        1) I think we can all agree that from a functional pov, the mandate is enforced via a penalty for not getting insurance.

        2) The Obama Admin, for whatever reason, viewed the mechanism *as* a penalty, a power the FedGum was accorded under the Commerce Clause. That’s what they said at the beginning, the middle and the end. It’s what they argued in the SC. They were apparently wrong about that. (I mean, I agree that they were wrong about that.) But that’s what the sold the bill as, and that’s what they argued in court.

        Given that, how does the claim of deliberate deception arise? I mean, they staked the constitutionality of the whole bill on a broad reading of the commerce clause?Report

      • Avatar Will Truman says:

        That’s what they said at the beginning, the middle and the end. It’s what they argued in the SC.

        That… remains a point of disagreement, to say the least. Even if we ignore lower-court options, many of us interpret “operates as a tax” to be indicative of agreeing that it is a tax.

        I’m not actually devoted to the notion that they were out-and-out lying. I believe they created a deliberate ambiguity that allowed them to argue from both sides.

        “The minimum coverage provision is valid not only as a tax in its own right, but also as an adjunct to the income tax.”

        I simply do not see that as consistent with the notion that they argued throughout that it was not a tax. At best, I think it can be argued that they took an ambiguous penalty (an ambiguity of their own creation) and shifted positions on it when they had to.Report

      • Avatar Stillwater says:

        I believe they created a deliberate ambiguity that allowed them to argue from both sides.

        I think our disagreement is whether or not the in fact did argue from both sides. My argument in this thread is based on the popularly promulgated conception of the bill’s mechanism (a penalty!) coupled with the fact that the defense of that mechanism’s constitutionality at the SC was based entirely (as I remember it, tho I’m open to corrections) on the idea that a penalty for not being insured was constitutional under the Necessary and Proper under the Commerce Clause.

        I mean, I’m the only thing I’m arguing for here is that the claim of deception is a hard one to make. I’m with greg and MD and Schilling (I think!) in that at the end of the day what we call the mechanism is irrelevant. But from a legal pov, it certainly matters. And my argument is that the OA was consistent (+/-) thru the entire process that the mandate was enforced by a penalty.

        Too bad for them they were wrong about that, eh?Report

      • Avatar Will Truman says:

        @stillwater Was I not clear that the quotes I supplied are things that the Solicitor General’s office argued to the court(s)? I don’t understand how you can read them and still say that they stuck solely to Necessary & Proper and ICC. That they argued that the Mandate was justified by the powers of taxation is not really disputed. They argued that the Mandate was justified by all of the above.Report

      • Avatar Wardsmith says:

        The so called revenue from the penalties amount to peanuts in the big scheme of things. You don’t buy insurance the ‘fine’is about $350 at the end of the year or about half my monthly premium for insurance that is substantially worse than I had before Obama care eliminated it.

        From the article linked above bold mine:
        Obamacare critics – as well as actuaries at the Centers for Medicare and Medicaid Services – have questioned whether the proposed Medicare cuts will actually remain in effect as the law projected. The actuaries also wonder if unions, medical device companies, insurers, and drug makers will succeed in undoing any of the tax provisions that affect them. Undoing these provisions would unravel the deficit reduction claims of Obamacare. Regardless, Americans can no longer count on a revised ruling from Congress’s official scorekeeper on Obamacare’s true costs to taxpayers.Report

  24. Avatar DensityDuck says:

    Look on the bright side, at least it’s not DrGod.Report

  25. Avatar Stillwater says:

    Major Zed,

    I don’t have a lot to say about this issue except that the distinction between a fine and a tax takes different shape when viewed from different angles. All of us here at the League talked about this long ago and during the earlier challenge to the ACA that reached the SC. Here’s my take on it: from a functional pov, the mechanism enforcing the mandate is a fine since it requires a payment from individuals after the fact and in response to their doing/failing to do something required by law. From a legal pov, tho, the mechanism is (and has to be, I think) a tax, since, as Roberts wrote, “The federal government does not have the power to order people to buy health insurance. The federal government does have the power to impose a tax on those without health insurance.”

    So the distinction you’re pushing on comes down to semantics, in some charitable sense of that word. The confounding thing is that the Obama administration’s arguments in court indicated (to John Roberts as well as me) that they didn’t understand the enforcement mechanism which drove the mandate itself. A confusion which Roberts clarified even tho (as I recall) the argument he employed to defend the constitutionality of the mandate was never articulated in court.

    Weird stuff, if you ask me.Report

    • Avatar Damon says:

      Sounds more and more like the SC ratified the law because they agreed with the premise..not that it was constitutionally valid law.Report

      • Avatar Stillwater says:

        Maybe. The way I’d say it is that Roberts rescued the constitutionality of the mandate by making the argument the ObamaAdmin shoulda made but didn’t. He kindly provided it for em and then decided in their favor.Report

      • Avatar Damon says:

        Yeah….just what a SC justice should be doing…creating arguments for one side to use, then agreeing with that argument and siding with that side. Bias much?Report

    • Avatar greginak says:

      Constitutionality? Never at issue until a lot of right winger needed something to come up with to cleanse the country of the ACA. Sort of the like the Halbig thing. The ACA was always within the bounds of the Big C.Report

      • Avatar Will Truman says:

        Not the Medicaid part, evidently. The Mandate only because it was a tax. Subsidies still TBD (though I personally expect that to survive).Report

      • Avatar Stillwater says:


        Only four justices agreed with the administration’s argument re: the mandate. That’s less than a majority! Yet the court decided in Government’s favor. I’d say that’s cutting it pretty close, no?Report

    • Avatar Mike Schilling says:

      “The fact that an adviser who was never on our staff expressed an opinion that I completely disagree with in terms of the voters is not a reflection on the actual process that was run.”

      Pretty vicious stuff. And cowardly too: if Obama were a real leader he’d take responsibility for everything someone he’d once hired said, even if it was years later.

      This whole flap is, quite seriously, one of the dumbest things I’ve seen recently. I can’t believe the amount of attention it’s getting.Report