As Ed Whelan points out below, Jonathan Gruber gave the Patient Protection and Affordable Care Act exactly the same reading, where “exchange established by the State” is concerned, that Judge Griffith of the D.C. Circuit gave it in the Halbig case. (I see from some Twitter traffic that Gruber is furiously backpedaling from a view that was plainspoken and uncontroversial at the time he offered it, but is now devilishly inconvenient.)
As Kimberly Strassel explains in her Wall Street Journal “Potomac Watch” column today, the IRS itself seems to have taken exactly the same view of the law’s meaning as the one in the Halbig ruling, until–the evidence strongly suggests–the agency was pressed into writing its regulatory thumb-in-the-dike for the hole opened up by 36 states’ refusal to establish exchanges.
Strassel’s source is an investigative report published by the House Government Oversight and Ways and Means committees. If ever there were a committee report of which the Supreme Court could properly take judicial notice in a case–not to construe the meaning of the law, which is plain enough, but as evidence of agency chicanery–this is it.