It's been a busy week for supporters of Halbig, exemplified by the fun video American Committment put together to make "Grubergate" famous. A few instances of health care economist/ACA inspiration Jonathan Gruber saying outright that subsidies were naturally tied to state exchanges were mashed up with Gruber denying this, and some bonus clips of Gruber describing the exchanges without being so explicit about the structure.
But nothing lasts forever. The Obama administration has thrown down its petition for an en banc review of the case, which would throw the 2–1 decision into the furnace of an eight-Democratic-appointee, five-Republican-appointee panel. Conservatives have been hustling to put new Gruber-esque evidence on the record; the administration dismisses it outright.
If Congress had wanted to confront States with these drastic consequences and thereby deprive them of a true choice between alternative ways to establish the same Exchanges, it would have said so clearly and directly—and there would have been some contemporaneous recognition of this critical feature ofthe Act. Congress would not have buried the dire ramifications of a State’s choice in a subparagraph containing the technical formula for calculating the tax credit amount—Congress “does not, one might say, hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001)
The full petition:
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