Obamacare turned 5 on Monday, a birthday achieved despite sustained and repeated efforts to smother the law in its cradle.
The law has taken some hits, including a 2012 Supreme Court decision that buckled the knees of the bill’s backers but seemed to make the Affordable Care Act the settled law of the land.
Now the Supreme Court has again taken up another challenge to the law.
King v. Burwell hinges on whether or not four words buried deep in the text of the law contain the seeds of Obamacare’s destruction by eliminating tax subsidies for people living in states that declined to set up their own insurance exchanges.
But even if they lose again at the court, conservatives say that they will continue to try to undo the law through the courts.
Michael Cannon, a health-policy expert at the Cato Institute, said the most promising challenge to the ACA comes from the state of Maine, which, after the Roberts court ruled in 2012 that the federal government was limited in how much it could compel states to expand Medicaid, sued to roll back its existing Medicaid coverage.
Last year, a federal appeals court ruled against the state, but Gov. Paul LePage has appealed to the Supreme Court, even as Maine’s attorney general has refused to represent the state in its challenge of the law.
Other remaining challenges include Sissel v. U.S. Department of Health and Human Services, which argues the ACA is unconstitutional because it violated the Constitution’s origination clause that states spending bills must originate in the House, not the Senate.
“They are both kind of long shots,” acknowledged Cannon, noting that “the Supreme Court has never struck anything down on origination grounds” and that the House likely lacks standing in its lawsuit against the administration.
If the administration loses King v. Burwell, most health-policy experts predict that it will create a “death spiral” as low-income beneficiaries lose their subsidies in states that did not set up their own exchanges, and insurers are forced to raise rates. But conservatives say they will not delay in kneeing the law into the grave by filing lawsuits in states that set up their own exchanges.
Because many states rushed to do so, conservatives say they expect that governors and their health departments may have violated their state constitutions, and so even residents of those states that believed they were immune from the Burwell decision could face a loss of subsidies as well.
If the Supreme Court decides in favor of the government in King, conservative legal scholars said that what they decide to do in the future to tear down the law depends upon precisely the way in which the judgment is rendered. Halbig v. Burwell mirrors the King case in many respects, but other cases could still go forward, in particular one in Indiana in which several dozen school districts have argued that the employer mandate to provide health insurance puts too much of a burden on state and local governments.
Smaller challenges to the law, meanwhile, continue to mount. Little Sisters of the Poor sued to exempt themselves from the contraceptive mandate. If successful, the suit would allow more organizations to opt out than the Hobby Lobby decision did.
Another challenge, brought by the Goldwater Institute of Arizona, takes aim at the Independent Payment Advisory Board, which was designed to permit the Executive Branch to limit Medicare payments. Even some of the law’s liberal supporters, like former Vermont Gov. Howard Dean, have said that the board should be eliminated or rethought.
Meanwhile, conservative legal scholars say they continue to pore over the text of the law in the hopes that they will find some other legal weaknesses that were not readily apparent. The King case, after all, hinges on four words in the text that were discovered by a legal scholar months after the law was passed.
“This law is so complicated that even those who have read it don’t understand the depths of it,” said John R. Graham, a senior fellow at the conservative National Center for Policy Analysis. “Every time we look at it, we find something else to take to a judge.”
And such lawsuits, he added, help galvanize opposition to the bill years after it has passed.
“They keep the energy up, keep Obamacare on the front pages, keep hope alive.”
Which is necessary, because many conservatives still hope that the law will collapse under its own weight.
“They have really reached the limit of sign-ups. Enrollment is flattening as people see more and more how expensive the coverage is, how high the deductibles are, all the hoops they have to jump through, and they realize it is just not very attractive insurance,” said Grace-Marie Turner of the Galen Institute. She said that many states would be able to opt out of some of the law’s provisions in 2017, and find their own alternatives.
“There is going to be huge momentum going forward to make changes to this law,” Turner said. “I could go on forever about how damaging this law has been to people’s lives. It has to be changed.”
By: David Freedlander, The Daily Beast, March 25, 2015
“It’s Better To Let Your Constituents Lose Their Coverage”: Paul Ryan To States; Help Us Sabotage Health Care
On the fifth anniversary of the Affordable Care Act becoming law, there’s value in reflecting on the systemic advances, which we did earlier. But it’s also a good time to look ahead and consider where the policy fight is headed.
Congressional Republicans, for example, who’ve already voted literally several dozen times to repeal the law, released budget plans last week that would – you guessed it – uproot the American health care system, replacing it with an alternative that Republicans can neither explain nor identify.
As if that weren’t quite enough, the GOP budget plans would likely double the uninsured rate, while eliminating $1 trillion in tax revenue that pays for the ACA. Because the Republican budget blueprint relies on bizarre gimmicks and fraudulent arithmetic, the plan offers no explanation for how it would cover the $1 trillion loss and no details about how Congress would help the millions of families that would lose access to affordable medical care after Republicans take their benefits away.
The GOP budget also makes no effort to address the possibility that Republican justices on the Supreme Court may soon scrap subsidies to consumers in two-thirds of the country in the ridiculous King v. Burwell case. House Ways & Means Committee Chairman Paul Ryan (R-Wis.), however, is on the case – he doesn’t have a policy solution, but Ryan has a plan to persuade state policymakers to help congressional Republicans’ broader game plan.
Rep. Paul Ryan urged state lawmakers to resist setting up state insurance exchanges if the Supreme Court rules that key parts of the Affordable Care Act can only continue if they do so.
“Oh God, no… The last thing anybody in my opinion would want to do, even if you are not a conservative, is consign your state to this law,” the Wisconsin Republican told state legislators Thursday during a conference call organized by the Foundation for Government Accountability, a conservative think-tank.
Ryan reportedly went on to say, “If people blink and if people say, ‘This political pressure is too great, I’m just going to sign up for a state-based exchange and put my constituents in Obamacare,’ then this opportunity will slip through your fingers.”
The right-wing Wisconsinite is known for some pretty extreme postures, but this is a brazen move, even for Paul Ryan.
If the Republican justices gut the Affordable Care Act, it’s likely Americans would see a bifurcated system: consumers in states run by Democrats would continue to receive subsidies to afford quality medical coverage, while millions of consumers in Republican-run states would go without. Or put another way, if your state created its own exchange marketplace, very little will change. If your state has referred consumers to healthcare.gov to enroll, you and your neighbors may be in big trouble.
If the high court’s ruling sides with the right, it’s quite likely that some Republican-led states would scramble to create their own exchange in order to help their citizens. Indeed, leading GOP officials in states like Michigan and Ohio have already indicated an intention to do exactly that in order to prevent their constituents from suffering.
That’s what Paul Ryan is responding to – he’s effectively telling these state officials, “No, wait, it’s better to let your constituents lose their coverage. Helping families keep their coverage is what the White House wants, so don’t do it.”
And what about the “opportunity” Ryan mentioned on Friday? As the congressman sees it, if the Supreme Court sides with Republicans, and if states agree to let their citizens go without, then they’ll be able to take advantage of the new GOP alternative to the Affordable Care Act. What’s in it? Paul Ryan doesn’t know. What will it cost? Paul Ryan doesn’t know. How many people will it cover? Paul Ryan doesn’t know. When can we see it? Paul Ryan doesn’t know.
Why in the world would state officials listen to such ridiculous advice, putting their own constituents in jeopardy? Paul Ryan doesn’t know – and neither does anyone else.
By: Steve Benen, The Maddow Blog, March 23, 2015
Americans learned yesterday that the Affordable Care Act has extended health care coverage to 16.4 million people, slashing the nation’s uninsured rate by over a third, against the backdrop of related system-wide good news. This puts “Obamacare” critics in an unenviable position: trying to characterize a law that’s working as a horrible failure, all evidence to the contrary notwithstanding.
Sen. John Barrasso (R-Wyo.), who’s struggled in this area before despite being the Senate GOP’s point person on health care, gave it his best shot. “Millions of people have lost coverage they liked,” the far-right senator told the New York Times, repeating a dubious claim unsupported by the evidence. He added that extending coverage to millions through Medicaid expansion is “hardly worth celebrating.”
He didn’t say why, exactly, he finds it discouraging when low-income families receive coverage through Medicaid.
But the funnier reaction came by way of a Wall Street Journal piece.
Edmund Haislmaier, senior fellow at the Heritage Foundation, a conservative research group, said the report also doesn’t include essential information on how many people who signed up on exchanges were previously uninsured.
“It’s premature to say it’s ACA-related,” Mr. Haislmaier said.
The number of uninsured historically also has been closely aligned with the economy, with numbers rising during recessions and falling as conditions improve.
The economic argument is itself politically tricky for ACA detractors, because it leaves Republicans in a position of arguing, “Let’s not credit Obama’s health care policies for the good news; let’s instead credit Obama’s economic policies.”
But it’s the Heritage Foundation’s other argument that’s truly amazing. The Affordable Care Act was created in large part to expand Americans’ access to affordable medical care. Once the law was implemented, its provisions worked like a charm and uninsured rate dropped. If the Wall Street Journal quoted Edmund Haislmaier fairly, the Heritage argument seems to be that the success might just be a coincidence – the ACA set out to reduce the uninsured rate, the law was implemented, and the uninsured rate fell at its fastest rate in four decades, but it’s “premature” to say the progress and the law are related.
Jon Chait joked:
Right, I mean, who can really say? Yes, there has been a sudden and extremely sharp plunge in the uninsured rates among the populations eligible for coverage under Obamacare that begins at the exact time Obamacare took effect:
But that could be anything. Survey error. People being excited about Republicans winning the midterm. Sunspots. You never know. Probably not the sudden availability of a major new federal health-care law enrolling millions of people.
Perish the thought.
For context, it’s worth noting that the Heritage Foundation used to be one of the leading conservative think tanks in the nation, even sketching out a health-care-reform blueprint several years ago that resembles the “Obamacare” model now. In recent years, however, Heritage’s focus has shifted away from scholarship and towards political activism.
By: Steve Benen, The Maddow Blog, March 17, 2015
“Congress Might Step In To Fix The Problem”: How Conservative Supreme Court Justices Harmed Their Own Anti-Obamacare Cause
Wednesday’s Supreme Court oral arguments made it evident that at least some conservative justices are worried about the disruption they’ll create if they rule for the challengers in King v. Burwell and void Affordable Care Act subsidies in 34 states.
The justices and lawyers themselves didn’t dwell on humanitarian costs, but those most hostile to the law repeatedly sought to downplay the consequences of an adverse ruling.
The plaintiffs’ lawyer, Michael Carvin, argued against all logic to incredulous liberal justices that eliminating subsidies wouldn’t leave states saddled with a punishing regulatory regime. Antonin Scalia got laughed out of court (sort of) for claiming Congress might step in to fix the problem. Samuel Alito even intimated that states might step in and establish their own exchanges. The Court could even lend them several months time to do so.
“It’s not too late for a state to establish an exchange if we were to adopt Petitioners’ interpretation of the statute,” Alito said. “So going forward, there would be no harm.”
If his suggestion was designed to appeal to skeptical conservatives, like Chief Justice John Roberts, and Anthony Kennedy, he may have harmed his own cause.
Alito’s comments evoke the image of many or most of the states that opted in to federally facilitated exchanges scrambling to reverse their decisions—to keep subsidies flowing and preserve the viability of their individual insurance markets.
That would stem the disruption. But it would also underscore the anti-federalist concerns Kennedy raised during oral arguments in dramatic fashion. What’s better evidence of coercion than sending a bunch of states into a blind panic to do something they weren’t originally inclined to do?
Supporters of the challenge might argue that the source of coercion in that case would be the disappearance of unauthorized subsidies, rather than the underlying scheme in the law. Essentially that this would all be the Obama administration’s fault. But Kennedy was explicit in his admonitions that the coercion problems with the challengers interpretation of ACA run deeper than money transferred by the federal government.
“The states are being told either create your own exchange, or we’ll send your insurance market into a death spiral,” Kennedy said. “We’ll have people pay mandated taxes which will not get any credit on on the subsidies. The cost of insurance will be sky high.”
To dull the implications of Kennedy’s concerns, conservatives enlisted Oklahoma’s Attorney General, Scott Pruitt, who banged out an op-ed arguing that his own state’s experience contradicts the premise that the ACA-as-written is unconstitutionally intrusive.
“Oklahoma knew the consequences of its decision but was not coerced into cooperating with implementation of the Affordable Care Act,” Pruitt wrote.
The argument lacks credibility coming from someone who adopted his position, on the advice of conservative activists, precisely because “in states that have not established their own exchanges, the structure of the ACA will crumble.” Seeking Pruitt’s guidance on the ACA’s impositions on states is a bit like taking flight lessons from a kamikaze pilot.
But Pruitt’s point also doesn’t allay Kennedy’s substantive concerns. His interpretation of the ACA arose not from its plain text, but, again, from the input of meddling activists trying to destroy Obamacare. It doesn’t follow from the fact that Pruitt is keyed in to conservative movement strategy that the ACA provides states clear notice that its subsidies come with major strings attached. Moreover, Kennedy’s problem isn’t just with states responding to the threat, but with the threat itself. “If petitioners’ argument is correct,” Kennedy said, “this is just not a rational choice for the states to make.” In other words, even if several states continue to resist ACA implementation after an adverse ruling, there’s still a problem here, because the federal government shouldn’t be allowed to confront states with such onerous choices in the first place.
Assuming Kennedy meant what he said about coercion, he has several options, most of which augur well for the ACA. He could allow the challengers’ anti-federalist construction of the law to guide him to a better available interpretation (i.e. the government’s). He could determine that the challengers’ construction should be avoided in favor of one that isn’t unconstitutional. He could essentially rewrite it, as the Court rewrote the ACA’s Medicaid expansion, to sever the offending phrase. Or, less auspiciously, he could find for the challengers, and leave the subsidy condition on the books, anticipating that a constitutional challenge will arise as a result.
But the fact that Alito and Scalia assumed a ruling for the challengers would send political actors scrambling for a fix doesn’t advance their ends with anyone concerned about coercion. It actually just proves the point.
By: Brian Beutler, The New Republic, March 6, 2015
Look out — the Supreme Court’s black-robed gang of far-right ideologues is rampaging again! The five-man clan is firing potshots at Obamacare — and their political recklessness endangers justice, the Court’s own integrity, and the health of millions of innocent bystanders.
In an attempt to override the law, these so-called “justices” have jumped on a wagonload of legalistic BS named King v. Burwell. But that case is a very rickety legal vehicle. It sprang from a frivolous lawsuit concocted in 2010 by a right-wing front group funded by such self-serving oligarchs as the Koch brothers, Big Oil, Big Tobacco and Big Pharma. The chairman of the front group was neither delicate nor discreet in describing the purpose of the lawsuit as a raw political assault on Obamacare: “This bastard has to be killed as a matter of political hygiene,” he howled at the time. “I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart … I don’t care who does it, whether it’s some court someplace or the United States Congress.”
So much for the intellectual depth of the King case, which was fabricated on a twisted interpretation of only four words in the 906-page health care law. The plaintiffs claim that the law prohibits insurance subsidies to the millions of low- and middle-income Americans living in the 36 states that did not set up a state exchange — thus making health care unaffordable to millions of hard-working Americans and small businesses who are purchasing insurance on the federal exchange—essentially nullifying the heart of Obamacare.
Both the district and appeals courts rejected that perverse ideological tommyrot, and even the nation’s largest health care provider called the claim “absurd.” Nonetheless, the gang of Supremes grabbed the case as a chance to wreak their own brand of ideological havoc on a law they personally dislike.
By taking over this case, these Republican judges have openly become partisans, thrusting the Supreme Court itself into the forefront of the GOP’s war against Obamacare — and against Obama himself.
While we know that an anti-government group funded by plutocratic corporate powers is behind the lawsuit intended to terminate Obamacare — who are the four people who are out front as the actual plaintiffs in the case?
The Competitive Enterprise Institute is the corporate front, but it had no standing to sue, so it had to find some actual people who would claim they’ve been harmed by the health care law. Thus, David King, a 64-year-old Vietnam vet, was recruited to be the lead plaintiff in King v. Burwell, which is now in the Supreme Court’s hands. He and three co-plaintiffs were chosen to put sympathetic human faces on what essentially is a right-wing political ploy.
But who are they? An investigative article in Mother Jones magazine by Stephanie Mencimer reveals that King’s modest income as a self-employed limo driver exempts him from Obamacare’s insurance mandate — so he’s been done no harm by the law and, therefore, has no standing to sue. Moreover, as a veteran, he’s entitled to VA care and, in a few months, to Medicare, making him double-covered by public health programs. Mr. King’s main reason for being on CEI’s lawsuit appears to be that he loathes Obama, referring to him as “a joke” and “the idiot in the White House.”
None of the three other recruits seem to have been harmed by Obamacare, either. “I don’t know how I got on this case,” says Brenda Levy, adding that, “I don’t like the idea of throwing people off their health insurance.” Then there’s Rose Luck, whose low income also exempts her from the law’s mandates. But she, too, fiercely loathes Obama. She posted on her Facebook page that she “wouldn’t admit he was our president,” calling him “The anti-Christ” who only won the Oval Office because “he got his Muslim people to vote for him.”
This lawsuit was a fraud from the get-go — and if five Supremes use it to take away the health coverage of some 10 million Americans, they’ll also be exposed as rank political hatchetmen masquerading as “justices.”
By: Jim Hightower, The National Memo, March 4, 2015