“Sorry, Obamacare Denialists, You’re Insane”: Don’t Want To Be Called Ridiculous And Nutty, Stop Saying Ridiculous, Nutty Things
Conservative writer Philip Klein, who seems very nice, complains that liberals are being far too mean about the latest conservative attempt to gut Obamacare. “Liberal critics of this legal theory have portrayed it as absurd, ridiculous, nutty, stupid, and even criminal,” he writes. “Recently, I’ve been likened to the health policy equivalent of a World Trade Center attack conspiracy theorist merely for sympathetically reporting the legal case of the challengers.”
Not exactly. Klein is conflating two different things here. First, there’s the Halbig lawsuit, which hinges upon a strained, somewhat-exotic reading of the law to argue that the Affordable Care Act fails to create tax credits for people who buy their insurance through a federal exchange. The basis of this lawsuit is that the most explicit reference in the law mentions only state exchanges, and therefore courts ought to ignore all the other, less explicit parts of the law implying the opposite.
This is the case conservatives made for several years — Congress hastily failed to write a clear law, so conservative legal activists can take advantage of the screwup to interpret what (they argue, tendentiously but not insanely) is its literal reading. As the right-wing Investor’s Business Daily, an early booster of this once-long-shot legal challenge, gleefully put it in 2011, “Oops! No Obamacare Tax Credit for You!” I’m sorry, the card says “Moops.” I find this argument highly, highly unpersuasive. It’s been laughed out of court by Democratic-appointed judges, and rejected by at least one Republican judge. I will say this for it — it is at least tenuously connected to reality.
But now conservatives are making a different argument. They’re no longer saying that the lawsuit is exploiting a drafting error. They’re claiming it interprets the law correctly, and that the law actually (or possibly) intended to deny tax credits to people in federal exchanges. They have gone from smugly saying the card says “Moops” to insisting that the people who invaded Spain in the eighth century were actually called “the Moops.”
And yes, that is completely insane. There is a massive trove of evidence here regarding the intent of the law’s drafters. Dylan Scott has the latest chunk today — a deep excavation of the role of the Congressional Budget Office, which was a kind of legislative super-body regarded as authoritative by Congress. The CBO, like everybody involved in the law’s passage, believed the federal exchanges were designed to give health insurance to people in states that did not build their own. They were not designed as a deliberately unworkable punishment.
Yes, some smart people, speaking extemporaneously, were sometimes confused about just how the law worked. (Conservatives have made a great deal about off-the-cuff comments made by Jonathan Cohn before the law was actually finalized.) That doesn’t change the fact that the federal exchanges were obviously designed to give people affordable insurance. It may be mean to point out that those who argue otherwise are completely, manifestly ahistorical, but that’s just reality. If you don’t want to be called ridiculous and nutty, stop saying ridiculous, nutty things.
By: Jonathan Chait, Daily Intelligencer, New York Magazine, August 1, 2014
Six federal judges ruled Tuesday on the legality of subsidies being provided for low-income subscribers under so-called Obamacare. The two with solid Republican credentials found the program illegal.
With all due respect to these members of the esteemed federal bench, I have to question whether they really went to law school – or, if they did, whether they ever tended a class in legislation. Because if they did, they should have been aware of two fundamental principles of legislative interpretation: (1) courts should defer to the obvious intent of the legislature; and (2) they should also defer to the interpretation of legislation provided by the administrative agency charged with its enforcement.
The statute provides for health exchanges in the states to run the program, and provides a back up for federal exchanges to administer them when the states decline to participate. The statute includes a provision that allows the Internal Revenue Service to provide tax subsidies to those enrolled in the “state” exchanges.
It is clear that Congress never expected 36 states (mostly those controlled by Republican governors or legislatures) to opt out. It should be equally clear that Congress never intended to deny subsidies to those citizens living in opt-out states.
But the two Republican judges sitting on the U.S. Court of Appeals for the District of Columbia, blindly adopted the bizarre argument of the law’s challengers that under a literal reading of the statute only state enrollees were entitled to the subsidies.
On the same day, another federal appeals court sitting in Virginia unanimously ruled the other way. In that decision, Judge Andre Davis ridiculed the argument adopted by the two majority judges in D.C. He wrote that “[plaintiffs want to] deny to millions of Americans desperately needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose… could not be more clear.” But that was precisely the “tortured, nonsensical” position taken by the D.C. duo to the dismay of their colleague, the senior judge on the D.C. Circuit, Harry Edwards.
Then comes the Chevron doctrine. Chevron is a long-standing doctrine established by the Supreme Court that it was the obligation of courts when interpreting statutes to give deference to the interpretation of the statute by the administrative agency entrusted by Congress with its implementation.
In this instance, it was the Internal Revenue Service which had primary responsibility for implementing the health care subsidies. But the D.C. majority ignored the IRS interpretation.
To be fair to the D.C. majority, there is another doctrine which they chose to follow. It is called “textualism,” and its primary exponent is Justice Anton Scalia, the legal guru of conservatism. And this principle seems to say implement the clear terms of the statute no matter how absurd – or “nonsensical” – the result. But as Scalia’s critics like to point out, he generally invokes that principle only when it brings about a result he is ideologically comfortable with.
Obviously, these cases will have to be reconciled by the United States Supreme Court. And, fortunately for the millions of persons entitled to health care subsidies in the 36 states with federal health exchanges, Scalia’s “textualism” does not have a lot of adherents, even among his conservative colleagues on the high court.
By: Frank Askin, Distinguished Professor of Law and Director of the Constitutional Litigation Clinic at Rutgers Law School-Newark; The Huffington Post Blog, July 30, 2014
Paul Ryan, the perennial media darling and the Republican vice-presidential nominee in 2012, has released an anti-poverty plan that has been widely hailed by a group of conservative policy enthusiasts known as the reformicons. According to Ross Douthat, The New York Times‘s house reformicon, the plan represents new and exciting conservative thinking, reflecting the “growing contrast between the policy ferment on the Republican side of the aisle and the staleness and/or small-ball quality of the Democratic Party’s ‘what comes after Obama?’ agenda.”
The problem with this argument is that none of Ryan’s ideas are new, and many of them are the antithesis of exciting.
Yes, the Ryan plan contains some ideas that are genuinely good. Its calls for major criminal justice reform are salutary — mass incarceration is fiscally wasteful as well as wasteful of human lives, and seeing an endorsement from a prominent Republican public official is reason for cautious optimism. It’s easier to propose cuts to corporate welfare in white papers than in the congressional sausage-making process, but to do so is unobjectionable. And proposing reforms to local regulations such as licensing requirements are at least defensible in some cases. None of these ideas are new, but originality is overrated — there is the potential basis for agreement here.
The core social welfare proposals of Ryan’s plan, however, fail both the originality and goodness tests. The plan does, at least, avoid the direct, savage cuts to discretionary spending that were a hallmark of Ryan’s previous budgets. Ryan’s proposal entails converting a great deal of federal anti-poverty spending into block grants to state governments, which would be free to experiment with those funds. There is, to put it mildly, nothing novel about this idea. Going back to conservative southern Democrats in the New Deal, conservatives have advocated giving states more discretion about how to use federal money.
But more to the point, in addition to being very old, the block grant idea is terrible. As the economist Max Sawicky notes, spending through block grants has the effect of creating disincentives for states to spend adequate money on poverty, while also undermining the political basis for maintaining the programs. In addition, giving the states discretion has tended to involve withholding spending from the “underserving” poor, who tend to be overwhelmingly people of color. The intrusive paternalism the Ryan plan encourages is also unattractive.
The notion that “let them eat states’ rights” is a new and exciting idea is particularly perverse given some other recent developments. To the widespread applause of Republicans, a panel on the D.C. Circuit Court of Appeals read the Affordable Care Act as not providing subsidies to people purchasing health insurance on federally established exchanges. According to defenders of the decision, this was not a drafting mistake; they say Congress intended to only make the subsidies available on state-established exchanges, but were surprised by how few states went along.
As a reading of the ACA, this argument is absurd — clearly Congress anticipated that some states would not establish exchanges, which is why the federal backstop was created. Virtually nobody involved in creating the ACA believes that the law was designed to create federal exchanges that wouldn’t work. It is fair to say, however, that some Democrats were surprised by how many states proved unwilling or unable to establish their own exchanges.
But consider the implications of this. The latest conservative legal argument against the ACA boils down to: “you screwed up — you thought the states actually wanted to provide people with health care!” And the Supreme Court re-writing the ACA in 2012 to make it easier for states to reject the Medicaid expansion has also been a catastrophe, with Republican statehouses inflicting easily avoidable pain and suffering on millions of people to prove their anti-Obama bona fides.
So — why is devolving anti-poverty policy to the states supposed to be a great idea again?
Indeed, the experience of the ACA is a compelling repudiation of the idea that giving states more discretion over social policy is a good idea — or that Republicans at the state level genuinely care about helping the poor and the needy. Many statehouses are opposed to federal anti-inequality measures in principle, and even less hostile ones have proved administratively inept. Anti-poverty policy in the U.S. needs more federal intervention, not less.
By: Scott Lemieux, Professor of Political Science, College of Saint Rose in Albany, N.Y; The Week, July 30, 2014
Every year or so Paul Ryan comes up with a glossy new plan to deal with poverty or spending on social programs. The plans never go anywhere, but they’re not really intended to: They’re designed to make the Republican Party (and Mr. Ryan himself) appear more thoughtful than it actually is on these subjects.
The one he released today is somewhat better than previous efforts, in that it doesn’t propose massive cuts in overall spending (unlike his House budgets), and would even increase the Earned Income Tax Credit, one of the government’s most successful anti-poverty programs. Democrats have also embraced a larger credit, although unlike Mr. Ryan, they would pay for it by raising taxes on the rich rather than slashing federal nutrition programs that Mr. Ryan thinks are a waste of money.
But the lack of seriousness in the plan is demonstrated by its supposedly big idea: It would combine 11 of the most important federal poverty programs into something called an “opportunity grant” that would be given to the states to spend as they see fit. The eliminated programs would include food stamps, what remains of the welfare system (known as Temporary Assistance to Needy Families), Section 8 housing vouchers, and low-income heating assistance, among others.
This technique should sound familiar. Members of Mr. Ryan’s party have spent years promoting the idea that states can do things better than Washington. As Rick Santorum repeated endlessly in 2012, “Cap it, cut it, freeze it, and block-grant it to the states.” Mr. Ryan’s running mate that year, Mitt Romney, would have turned all of Medicaid into a block grant system dumped onto the steps of 50 state capitols.
Putting programs like food stamps into a block grant means they could not be expanded on a national basis during economic emergencies, when unemployment or poverty soars. If a state were to have a budget crisis, perhaps due to tax cuts, social spending would be the first to go.
The broader problem is the sharp division between the states, which exposes the gap between Mr. Ryan’s attempt at high-mindedness and the petty grievances of the Republican majority. The proponents of these consolidation ideas know that while blue states would shoulder their responsibilities and protect their poorest residents, many red states would not. If Washington were not in the anti-poverty business, Republicans would have an opportunity to reduce spending on social programs in about half the country.
The attitude of red states toward social spending has been made brutally clear by their reaction to the Affordable Care Act. In 36 states, lawmakers refused to set up health care exchanges, putting the insurance subsidies for poor people at risk if a recent court decision is upheld. And only 27 states, including the District of Columbia, have agreed to expand their Medicaid programs. The effect on lowering the number of uninsured people in states with expanded programs is clear, but lawmakers elsewhere don’t care.
In Florida, the Republicans who rule the state have not created exchanges or expanded Medicaid, and have offered nothing to the 760,000 state residents with no insurance. The state has even banned volunteers who were helping poor people sign up for the federal exchange. The president of the Florida Senate, Don Gaetz, summed up the prevailing attitude perfectly this week: “As long as I serve in the Senate, I will never support the state of Florida serving as the instrument by which individuals and businesses are forced into a federal mandate to purchase a health insurance product they may not want.”
Mr. Ryan would never say so, but the real effect of his plan is to turn over a series of highly successful federal poverty programs into the hands of Don Gaetz and other anti-government ideologues. There’s not much doubt what the effect on poor people would be.
By: David Firestone, Taking Note, The Editorial Page Editors Blog; The New York Times, July 24, 2014
If you were perusing the conservative twitter-sphere this morning, you would have witnessed a kind of collective orgasm, as it was discovered that back in 2012, MIT economist Jonathan Gruber gave a talk to a small group in which he seemed to support the analysis of the two judges on the D.C. Circuit who ruled this week in Halbig v. Burwell that the subsidies for buying health insurance under the Affordable Care Act should go only to people who live in states that set up their own insurance exchanges. Since Gruber advised Mitt Romney on the creation of Massachusetts’ health reform (which became the model for the ACA) and then advised the White House and Congress during the preparation of the ACA reform, conservatives are now convinced they have their smoking gun: The law, they contend, was always designed to deprive millions of Americans of subsidies, and was in fact never meant to achieve that “universal coverage” that everyone involved said was its goal.
Up to the point where the Supreme Court rules on Halbig, those conservatives will be citing Gruber’s 2012 comments. A lot. But the idea that something Gruber said in response to a question in front of what looks to be around 20 people is more relevant than literally everything else that happened during the drafting and debate over this law’s passage is, to put it plainly, insane.
Let me provide a partial list of people who spent over a year between the beginning of the debate over health-care reform and the passage of the law talking about the ACA, but never mentioned what was supposedly the intent of Congress that people in states using the federal exchange would be deprived of subsidies:
- Barack Obama
- Kathleen Sebelius
- Harry Reid
- Every other Democratic senator
- Nancy Pelosi
- Every other Democratic House member
- Every health-care analyst in America
- Every health-care reporter in America
- Every Republican in the Senate
- Every Republican in the House
- Every conservative opponent of the law
Ezra Klein, who wrote as much about health-care reform during this period as anyone, tweeted this morning that he interviewed Gruber dozens of times, and not only did Gruber never mention this issue, “[t]he same is true for literally everyone else I interviewed. I never heard a single person say subsidies don’t work in federal exchanges.”
As for Gruber himself, this morning he spoke to Jonathan Cohn, and here’s what he told him:
I honestly don’t remember why I said that. I was speaking off-the-cuff. It was just a mistake. People make mistakes. Congress made a mistake drafting the law and I made a mistake talking about it.
During this era, at this time, the federal government was trying to encourage as many states as possible to set up their exchanges. …
At this time, there was also substantial uncertainty about whether the federal backstop would be ready on time for 2014. I might have been thinking that if the federal backstop wasn’t ready by 2014, and states hadn’t set up their own exchange, there was a risk that citizens couldn’t get the tax credits right away. …
But there was never any intention to literally withhold money, to withhold tax credits, from the states that didn’t take that step. That’s clear in the intent of the law and if you talk to anybody who worked on the law. My subsequent statement was just a speak-o—you know, like a typo.
There are few people who worked as closely with Obama administration and Congress as I did, and at no point was it ever even implied that there’d be differential tax credits based on whether the states set up their own exchange. And that was the basis of all the modeling I did, and that was the basis of any sensible analysis of this law that’s been done by any expert, left and right.
I didn’t assume every state would set up its own exchanges but I assumed that subsidies would be available in every state. It was never contemplated by anybody who modeled or worked on this law that availability of subsidies would be conditional of who ran the exchanges.
Cohn, too, says he never spoke to anyone who mentioned this before the Halbig lawsuit. If this was actually what Congress thought the law would do, then liberals would have been freaking out about this provision for years, because it would mean that millions of people wouldn’t be able to get coverage. And conservatives would have been crowing about it for years, for the same reason. But nobody on either side was, because it was never part of Congress’s intent. It was a mistake, and one contradicted by multiple other provisions in the law.
I have no doubt that when the Halbig case is re-argued before the full D.C. Circuit, either the plaintiffs’ attorneys or one of the conservative judges will bring up Gruber’s 2012 comments. Let’s just hope it gets shot down like the baloney it is.
By: Paul Waldman, Contributing Editor, The American Prospect, July 25, 2014