“Who Knew?”: Conservatives Don’t Have An Obamacare Replacement Because They’re Too Busy Complaining About Obamacare
With the Supreme Court scheduled to hear the Obamacare challenge King vs. Burwell next week, Democrats and Republicans are both trying to influence the Court’s decision. For the left, that means focusing on the millions of people who could lose health insurance if the Court rules that the Affordable Care Act doesn’t provide subsidies in the 36 states on the federal exchange, Healthcare.gov. Just this week, Department of Health and Human Services Director Sylvia Matthews Burwell informed Congress that there was no administrative fix if the plaintiffs succeed. Liberal groups are equally reticent to discuss their strategy.
Conservatives, on the other hand, are determined to show that a ruling for King wouldn’t throw the U.S. health care system into disarray. Above all, that means proving that Republicans can finally agree on a replacement plan. Not coincidentally, the Conservative Political Action Conference (CPAC) in National Harbor, Maryland, included a panel Thursday titled, “The Conservative Replacement to Obamacare.” If anything, though, the panel showed that Republicans have made no progress on coalescing around an Obamacare replacement.
Moderated by Amy Frederick of the 60 Plus Association, a seniors advocacy organization, the event featured Senator John Barrasso, Representative Marsha Blackburn, and Jim Capretta, a health policy writer from the Ethics and Public Policy Institute. “We continue to hear another lie, that conservatives have no solution to Obamacare,” Frederick said in her opening. “We’re going to put the lies to bed for good.”
While the participants were supposed to talk about a replacement conservative health plan—at least based on the panel’s title—they spent the majority of the 36-minute event attacking Obamacare. For instance, after Barrasso, Blackburn, and Capretta each gave their opening statements, Frederick began the question round by saying, “Let’s start with a political question for the panel.”
Wait, wasn’t this supposed to be a policy panel?
Of the five questions Frederick asked, only one was about policy solutions. The rest were about politics.
The lone wonk of the group, Capretta handled that lone policy question, noting that conservative health reform legislation has been introduced in both the House and Senate. Regardless of the merits of those bills, though, the challenge for Republicans isn’t simply introducing legislation. It’s actually passing it. The House can take up an Obamacare replacement plan at any time. In fact, former House Majority Leader Eric Cantor promised to do just that in 2014. “This year, we will rally around an alternative to Obamacare and pass it on the floor of the House,” Cantor said 13 months ago.
Liberals rolled their eyes at that promise, and they’re doing it again as Republicans offer platitudes about their ability to agree on a solution. And rightly so. Just look at the “Points to Remember” that the 60 Plus Association posted on their website about the panel. None of the points has anything to do with a replacement plan. Instead, they only explain the faults of Obamacare. What happened to all of those conservative solutions?
In the past, Democrats mocked the GOP’s inability to coalesce around a replacement plan. But the King case now makes their position far more meaningful. If the Supreme Court rules for the plaintiffs, it will make health insurance unaffordable for millions of Americans and potentially cripple health insurance systems in states using the federal exchange. No one knows how Congress and the states would respond to such an outcome. But they will have to respond. Republicans understand this. “The most important opportunity we’re going to have soon is the King decision,” Barrasso said, “because that can start us on the path of actually transferring the power out of Washington and to the states.”
Blackburn agreed, although it’s not clear she actually understands the case (or health care in general). “Obamacare is an enormous redistribution of wealth,” she said. “And taking the federal government, inserting itself into the health insurance and health care delivery marketplaces simultaneously and then wrapping up that money and then that access—that’s why we have to keep our focus on King vs. Burwell and the appropriate response.”
If you know what the latter part of that quote means, please let me know.
Ultimately, Barrasso and Blackburn are right. The King case is a huge opportunity for the Republican Party to come together around a conservative health care proposal. Capretta all but pleaded with congressional Republicans to do just that. “We need to come and rally around a basic single vision for where we need to go,” he said. “It’s really important for everybody to set aside their small differences so that they can rally around the big issue.”
But as CPAC showed, there’s no chance they will actually do that.
By: Danny Vinik, The New Republic, February 26, 2015
As we approach the March 4 oral arguments for King v. Burwell, the Supreme Court case that may decide the fate of ObamaCare, it’s worth delving further into a legal argument that approaches 9/11 truther levels of insanity.
As I observed in a recent piece for The Week, there are two ways that the argument can proceed in its attempt to establish that the Affordable Care Act does not authorize health insurance subsidies on federally established state exchanges. The first is to say that no matter what lawmakers intended to accomplish, they mangled the letter of the law to say that the subsidies will not flow to such exchanges. Whoops.
The other argument, fully embraced by the law’s opponents at the Supreme Court, is that legislators intended to deny subsidies to the states — even though that would go against everything they set out to accomplish.
These are both terrible arguments; one would deny millions of people health insurance over the equivalent of a typo, while the other flies in the face of common sense and the historical record. But they permit opponents of the ACA to switch from one to the other as a means of evading devastating objections to any individual argument.
A classic example of a pundit engaging in this dance is Ramesh Ponnuru, who tries to split the difference between the two variants. His column in Bloomberg is a useful distillation of the three stages of Affordable Care Act trutherism.
Ponnuru starts out by suggesting that the letter of the law is clear — “nowhere does the law authorize subsidies for plans purchased on those federally run exchanges.” But you can arrive at this conclusion only by using terrible, unworkable methods of statutory construction. You don’t have to take my word for it — the brief submitted by major legal scholars, including Ronald Reagan’s solicitor general and one of the country’s foremost experts in statutory construction, explains this in clear detail.
When you focus on the statute as a whole, rather than on the isolated phrase that appears to confine subsidies to the exchanges established by state governments, it is clear that exchanges established by the federal government on the state’s behalf are “[e]xchange[s] established by the State,” as the statute defines them. Indeed, the ACA is an excellent illustration of why phrases in statutes should be read in context. Doing so produces a coherent reading of the statute’s purpose, whereas the reading of the ACA’s opponents, represented by Jonathan Adler and Michael Cannon, produces numerous anomalies and puts the statute at war with itself.
There’s a reason why Adler and Cannon haven’t been content to rest on the typo argument. It sounds superficially plausible in a seminar room, but in the broader world, people are going to wonder why literally none of the relevant federal or state officials read the statute in accordance with its allegedly clear and unambiguous meaning. (If the statute is not clear and ambiguous, under well-settled precedent the courts are supposed to defer to the judgment of the IRS, which will be responsible for administering the subsidies.)
As a sort of way station between the two arguments, then, Ponnuru proceeds to an argument we can label, “Looks like those clowns in Congress did it again. What a bunch of clowns.” In other words, various members of Congress had different intentions, many weren’t really paying careful attention — who can say what Congress was really trying to do? As Ponnuru writes, lawmakers are “generally not detail-oriented people.”
There is a grain of truth to this argument — Congress is a “they,” not an “it,” as social scientists say, and we should be careful in making broad generalizations. Nonetheless, everybody makes reasonable judgments about what Congress is trying to accomplish, not least because it would otherwise be impossible to practice law or interpret history. We can understand why the Wilmot Proviso, for example, broke down on sectional rather than partisan lines without claiming to know the precise subjective intentions of each and every member of Congress.
And in this case, the idea that we can’t reasonably infer what Congress was trying to do is absurd. The amicus brief written by Nicholas Bagley, Thomas Merrill, Gillian Metzger, and Abbe Gluck is particularly strong on this point. Federal backstops are not some mysterious new innovation of the ACA — they’re a bog standard part of cooperative federalism. They’re inserted in statutes when Congress wants to ensure that benefits of programs administered primarily by states will flow to citizens even if the states decline to participate.
Congress did not intend for the federal backstop to fail, and it was universally understood that the insurance exchanges could not work without tax credits and the individual mandate. There’s only a mystery here if you hate the ACA so much that you’ve become willfully blind to what it’s trying to accomplish and how it relates to previous statutes in the New Deal/Great Society tradition.
As such, it makes sense that the ACA’s opponents would develop an alternate history that can actually reconcile their reading of the statute with an explanation of Congress’ intentions. The Supreme Court is much less likely to strip insurance from millions of people based on what the architects of the suit initially identified as a “glitch,” than if it convinces itself that it’s upholding the will of Congress.
Ponnuru doesn’t go quite so far as to say that he’s “100 percent certain” about what the ACA’s drafters were setting out to accomplish, but he does argue that the Adler/Cannon interpretation makes sense. Denying subsidies on federally established exchanges, Ponnuru asserts, is “not at all absurd in principle.” After all, states that don’t comply with the requirements of Medicaid don’t get the money — why shouldn’t we think that the same principle of coercion is at work in the exchanges?
But the contrast with the ACA’s Medicaid expansion destroys Ponnuru’s argument rather than fortifying it. The Medicaid expansion shows how Congress proceeds when it’s actually trying to coerce states. To state the obvious, if you’re making a threat, you don’t keep the consequences of failing to comply a secret. On the flip side, legislators were well aware that some states would not or could not establish their own exchanges, and this is why they wanted to establish a backstop.
The weakness of all these arguments explains why apologists for the latest legal war on the ACA like to alternate between them. If a critic points out that you should take the context of the entire statute into account, just say that Congress was consciously trying to coerce the states, not create a federal backstop. When people point out that this is nonsense, return to asserting that Congress messed up the language. Repeat as necessary.
Hopefully, at least five justices will see through this game of legal three-card monte.
By: Scott Lemieux, The Week, February 20, 2015
If at first you don’t succeed, try, try again? That certainly seems to be the motto of House Republicans. Last week, the House GOP took its 56th vote to repeal the Affordable Care Act, President Barack Obama’s signature health care reform law.
The bill’s prospects for consideration in the Senate are low and the president has repeatedly promised to veto such a measure anyway. After 56 tries, the House votes to repeal the health care law have become so commonplace that hardly anyone in Washington even blinks an eye at them anymore. Even the president says he’s lost count of how many repeal votes there have been. If House Republicans are serious in their quest to roll back the Affordable Care Act, why do they keep pursuing a strategy they know is doomed to fail?
They do it because these multiple repeal votes aren’t a serious attempt to void the health care law. They are merely symbolic message votes. Voting to repeal the Affordable Care Act was a popular campaign message for candidates on the right, and the recent House vote gave them a chance to fulfill their election year promises.
The repeal votes also give the Republican party a platform to continue talking about their opposition to the health law and to highlight its differences with the president. However, too many “message” votes may have also put the party in a bind. After 56 votes on essentially the same piece of legislation, the Republican party has faced criticism, according to The Hill, for failing to articulate an alternative plan. The repeated symbolic votes also expose the party to criticism for failing to lead in a critical policy area. The time spent in fruitless endeavors to repeal the law could have instead been used to negotiate on policies to fix the Affordable Care Act’s weaknesses. When it comes to health care policy, Republicans have simply become the party of no.
It’s time to switch tactics. Following the House votes last week, Sen. Orrin Hatch, R-Utah, Sen. Richard Burr, R-N.C., and Rep. Fred Upton, R-Mich., released a proposal for an alternative health care plan. The proposal is a good first step and perhaps necessary as, for the first time, three House Republicans voted against repeal of the Affordable Care Act in protest of their party’s apparent lack of a plan to replace it.
In addition to putting an actual health care plan on the table, Republicans may also want to consider trying to make changes to the current health care law in pieces. There could be opportunity for negotiation on aspects of the law that remain unpopular, such as the medical device tax, the Medicare Independent Payment Advisory Board and the definition of a full-time work week. Further, the Supreme Court ruling on the King v. Burwell case later this year regarding the legality of the subsidies being provided for the purchase of health insurance on the federal exchanges could provide Republicans with another opportunity to change the law. If the Supreme Court rules against the subsidies, a legislative fix may be necessary. By taking advantage of these opportunities, the party might be able to make the law more palatable for its constituency and improve its credibility in the process.
House Republicans have made their disdain for the Affordable Care Act very clear. A 57th vote to repeal the law will not be necessary, especially since it, too, would be doomed to fail as long as Obama is in office. However, it’s entirely possible we’ll see one. By focusing strictly on repeal of the entire law, Republicans risk giving the impression that they are completely unwilling to engage in meaningful debate on health care policy. The party should instead work to improve the law and continue putting forward ideas to do so.
A great example of this can be found at the state level. Following the Supreme Court’s decision that the Affordable Care Act’s Medicaid expansion was optional, several Republican governors have proposed alternative Medicaid plans to the administration. Some have already been successful in putting their imprint on the president’s initial policy because they came to the table in a serious manner. Republicans at the federal level would do well to follow suit.
By: Cary Gibson, a Government Relations Consultant with Prime Policy Group; Thomas Jefferson Street Blog, U. S. News and World Report, February 10, 2015
When it comes to the insanity surrounding the King v. Burwell case, we already have a pretty good sense of most of the relevant angles. We know who supports the ridiculous case and why, what happens if Republican justices go along with this dangerous nonsense, how many families will suffer and where, etc.
We don’t, however, know much about the specific plaintiffs themselves.
Remember, when challenging a federal law, it’s not enough for someone to get a lawyer, go to court, and demand the law be struck down. In the American system, plaintiffs need standing – litigants have to demonstrate that a law harms them in some direct way.
And so, in the painfully absurd King v. Burwell case, anti-healthcare lawyers went out and found four people willing to sue because they’re eligible under the Affordable Care Act for insurance subsidies. They’ve been largely overlooked, but given the possibility that this case will end access to medical care for millions of families, it seems like a good time to ask, “Who are these people who want to destroy the American health care system?”
Stephanie Mencimer reports today on all four of the plaintiffs, and it’s quite a collection of folks. For example, David King of King v. Burwell notoriety, “brought up Benghazi” when asked about the anti-healthcare lawsuit. Rose Luck believes President Obama may be the “anti-Christ” and was elected by “his Muslim people.” But a Virginia woman Brenda Levy stood out as especially significant.
What was more surprising, though, was that she said she didn’t recall exactly how she had been selected as a plaintiff in the case to begin with. “I don’t know how I got on this case. I haven’t done a single thing legally. I’m gonna have to ask them how they found me,” she told me. She thought lawyers involved with the case may have contacted her at some point and she had decided to “help ‘em out.” […]
When I asked her if she realized that her lawsuit could potentially wipe out health coverage for millions, she looked befuddled. “I don’t want things to be more difficult for people,” she said. “I don’t like the idea of throwing people off their health insurance.”
Her case, whether Levy realizes it or not, exists to throw people off their health insurance.
She added that she intends to go to D.C. for the Supreme Court’s oral arguments “It’s an adventure,” Levy said. “Like going to Paris!”
Complicating matters further, three of the four plaintiffs are finding their standing suddenly facing new scrutiny. The Wall Street Journal reported late Friday that King “appears to qualify for veterans’ medical coverage, raising questions about his ability to challenge the law.”
The plaintiffs have persuaded courts to hear their case on the grounds that the subsidies allegedly harm them by subjecting them to the law’s requirement to carry insurance or pay a penalty. Without the subsidies, insurance would be too expensive for them, they contend, thus making them exempt from having to pay the fine for lacking insurance.
But Mr. King could avoid paying that fine or any insurance premiums because, according to him and his attorneys, he served in the Army in Vietnam. That qualifies him for medical coverage with no premiums through the Department of Veterans Affairs, benefits and legal experts say. In an interview at his home here, Mr. King said he had been to a VA medical center and had a VA identification card, which typically serves as proof of VA-care enrollment.
Legal experts say the fact that Mr. King could avoid paying the penalty for lacking insurance by enrolling in VA coverage undermines his legal right to bring the case, known as “standing.” The wife of a second plaintiff has described her husband on social media as being a Vietnam veteran. The government previously questioned the standing of a third plaintiff on the grounds that her income may exempt her from paying the penalty for lacking insurance, but a lower court didn’t address the issue.
Levy, the one who doesn’t want to throw people off their health insurance despite her role as a plaintiff in this case, will qualify for Medicare this June – which would remove her from the ACA coverage system anyway.
These fresh details reinforce the impression that the entire King v. Burwell case seems like a transparent scam, and as the WSJ added, the standing issues “could create skepticism about the strength of the challengers’ case and highlight the difficulty of finding plaintiffs to show the health law’s subsidies harm Americans.”
By: Steve Benen, The Maddow Blog, February 9, 2015
Republicans in the House voted on Wednesday to repeal the Affordable Care Act—for the fifty-six time. After four years these show votes have become a tedious joke. But Wednesday’s action had bleaker implications, as it was cast in the shadow of a lawsuit that could undermine the healthcare law in fatal ways.
In a few weeks the Supreme Court will hear oral arguments in King v. Burwell, which contends that the text of the ACA allows the IRS to give subsidies only to people who purchase insurance through exchanges set up by their state, and not to those who rely on the federally run marketplace. If the plaintiffs prevail, some 7 million people in the thirty-four states that have declined to set up their own exchanges would lose the tax credits that subsidize their insurance. Coverage would likely become unaffordable for many of them; without enough people in the marketplace, the law could collapse into a “death spiral.” In human terms, a group of hospitals wrote in a brief supporting the government, a ruling in favor of the plaintiffs “would be a disaster for millions of lower- and middle-income Americans…. The ranks of the uninsured will swell again, with all that portends in the way of untreated illness and overwhelming debt.”
To build their case, the plaintiffs have erected a rickety scaffold of fictional history around a single phrase in the 906-page law. The section of the law in question concerns the calculation of subsidies available to people “enrolled in through an exchange established by the State.” The plaintiffs argue that lacking an explicit reference to subsidies available to people enrolled in the federal exchanges, the text indicates that subsidies are only available in states operating their own. Furthermore, the plaintiffs argue, this was not sloppy writing but instead “reflects a specific choice by Congress” to design the subsidies as a carrot to entice states to establish their exchanges and punish them if they failed to do so.
The lack of structural integrity in the plaintiff’s case has become increasingly obvious in the past week, thanks to a sheaf of briefs filed states, lawmakers, and the healthcare industry. In sum, there’s about zero evidence for the challengers’ version of history, and what proof they do muster is shoddy. For example, one brief cites former Nebraska Senator Ben Nelson, who played a defining role in designing the exchanges. According to the plaintiffs, Nelson thought it was “insufficient to merely allow states the option to establish Exchanges,” hence the need for a stick. But Nelson himself stated recently that he “always believed that tax credits should be available in all fifty states regardless of who built the exchange, and the final law also reflects that belief as well.”
It’s not hard to find conservative lawmakers, like Senate majority leader Mitch McConnell, who will argue now that “the language of the law says…subsidies are only available for states that set up state exchanges.” But the idea that subsidies might be withheld was never articulated by anyone during the congressional debate, nor in the months after the law’s passage—even when states began to signal they would not operate their own exchanges. Instead, the same Republicans who endorse the lawsuit now were passing laws and making statements that affirmed the idea that subsidies would be available in all states. Statements from legislators and state officials that back up the plaintiff’s version of legislative history were made only after the implications of that ambiguous phrase in the ACA began to circulate around right-wing thought shops like the American Enterprise Institute and the Cato Institute.
If Congress did intend to use the subsidies as an incentive for states to set up their own exchanges, the fact that many state officials were clueless about the possible loss of tax credits is perplexing. None of the states “had reason to believe that choosing a federally facilitated exchange would alter so fundamental a feature of the ACA as the availability of tax credits,” reads a brief filed last week by nearly two dozen attorneys general representing red and blue states alike. “Nothing in the ACA provided clear notice of that risk, and retroactively imposing such a new condition now would upend the bargain the states thought they had struck,” it continues. The Washington Post’s Greg Sargent spoke with a number of Republican state officials involved in the implementation of the ACA who confirmed that the possibility of losing subsidies was never part of discussions about whether or not to set up state exchanges.
The court could strike a blow against the ACA without fully accepting the strained version of history offered by the challengers. But as legal scholar Linda Greenhouse describes in The New York Times, doing so would require the justices to set aside their own principles and precedents. “The court has permitted itself to be recruited into the front lines of a partisan war. Not only the Affordable Care Act but the court itself is in peril as a result,” Greenhouse writes. “To reject the government’s defense of the law, the justices would have to suspend their own settled approach to statutory interpretation as well as their often-stated view of how Congress should act toward the states.”
It’s tempting to dismiss the lawsuit as a deeply silly partisan attack, akin to the House GOP’s repeated votes for repeal. Its basis may indeed be fluff. And yet it’s entirely possible that it will be this absurd case—not sabotage by Republicans at the state level; not lawsuits challenging the law on its constitutional merits—that dooms the signature achievement of the Obama years, at an immense human cost.
By: Zoe Carpenter, The Nation, February 5, 2015