Jonathan Gruber’s Contempt for Democracy

So one name that has become familiar in the Obamacare debates is Professor Jonathan Gruber of MIT.  He was, as Reason succinctly puts it:

by most accounts, one of the key figures in constructing the Affordable Care Act, better known as Obamacare. He helped designed the Massachusetts health care law on which it was modeled, assisted the White House in laying out the foundation of the law, and, according to The New York Times, was eventually sent to Capitol Hill "to help Congressional staff members draft the specifics of the legislation." He provided the media with a stream of supportive quotes, and was paid almost $400,000 for his consulting work.

This leads a lot of people to focus on his words during discussions of the intent behind Obamacare, especially in dealing with the issues raised by my previous post of whether the tax credits are supposed to be available if the state fails to create an exchange.  For instance, via Twitchy we get this video comparing his statements about exchanges created by a state, here:

And Twitchy and other outlets focused on all of that, but most lawyers didn’t.  There is a myth in the public that the “spirit of the law” controls how a law is interpreted, or less vaguely, legislative intent.  No, it does not.  The letter of the law controls.  Things like legislative intent, the “spirit” of the law, even agency interpretation only come in when the law is not clear.  The rest of the time, the law is generally followed as written.

And why is this?  Because the people have a right to be able to open their statute books and have half a chance of understanding it.  As I quoted from Scalia when discussing a criminal law:

A criminal statute must clearly define the conduct it proscribes. If it does not “‘give a person of ordinary intelligence fair notice’” of its scope, United States v. Batchelder, 442 U. S. 114, 123 (1979), it denies due process.

And while it is less compelling in the case of a law with primarily civil effects like Obamacare, it is still important for a second reason: because we are the rightful sovereigns of this country.  The syllogism, is really pretty simple:

1.         As the sovereigns of this country, we have a right to determine what the law will be;

2.         We cannot intelligently decide what the law will be, unless first we understand what the law is;

3.         But if the plain text of the law can be ignored because of hidden lawyer tricks such as a nebulous “intent of the writers” then ordinary people have no chance of knowing what the law is.

4.         Therefore courts should follow the plain text to make the law understandable, and thus to promote democracy.*

All that might seem like a diversion, but in fact, I was trying to make you see a principle abstractly before I applied it to another situation.  A video of Mr. Gruber is making the rounds where he talks about the passage of Obamacare.  I don’t care about it from a legal standpoint—what he says is irrelevant unless the law is ambiguous.  But I want to point out what it says about his respect for Democracy:

If you cannot, or do not wish to, watch the video, this is what he said:

This bill was written in a tortured way to make sure CBO did not score the mandate as taxes. If CBO [Congressional Budget Office] scored the mandate as taxes, the bill dies. Okay, so it’s written to do that.  In terms of risk rated subsidies, if you had a law which said that healthy people are going to pay in – you made explicit healthy people pay in and sick people get money, it would not have passed… Lack of transparency is a huge political advantage. And basically, call it the stupidity of the American voter or whatever, but basically that was really really critical for the thing to pass....Look, I wish Mark was right that we could make it all transparent, but I’d rather have this law than not."

A lot of people honed in on the line about the “stupidity of the American voter,” but the larger context is even worse than that.  He is saying that the bill was written in such a way as to positively frustrate the ability of the American people to comprehend the law.  And I will note that even seasoned jurists like Scalia claimed it would violate the Eighth Amendment to read the whole thing:

I have read many statutes and I can say with reasonable confidence that it is hard for most lawyers to understand and therefore you are not “stupid” if you don’t understand it.

And that was the design!  Write a law that (almost) no one could understand, shove it down an unwilling electorate with dubious tricks such as “deem and pass,” and then hope that the Republicans can’t repeal it.  This isn’t a respect for the will of the people: this is a disdain for them, including calling them stupid for being unable to read a law that Scalia himself found daunting.

I have become convinced, dear reader, that there is a faction of the left that simply doesn’t believe in democracy anymore.  They believe in getting in the “right” laws more than getting them in the right way.  I want to be clear.  I am not saying all of the left believes it, but there are enough people on the left that do that this is a serious problem.  And I will make it an ongoing theme of this blog to expose it.

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* A lot of people I respect like to draw a distinction between the words “republic” and “democracy.”  Democracy comes from “Greek dēmokratia, from dēmos ‘the people’ + -kratia ‘power, rule.’”  Meanwhile, republic comes from Latin “respublica, from res ‘entity, concern’ + publicus ‘of the people, public.’”  So at their roots they mean, more or less, the same thing.  There is certainly no support for the idea that a Republic implies the idea of representation or a constitution and there is no suggestion that the term “Democracy” implies direct voting on all questions, since it is proper to term America a “representative, constitutional democracy” as opposed to a “direct democray.”  So in my writing, the term “republic” and “democracy” and like terms are used interchangeable.

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My wife and I have lost our jobs due to the harassment of convicted terrorist (and adjudicated pedophile) Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the donation link on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.