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“The Equivalent Of Thinking The Iraq War Would Be A Cakewalk”: Why The GOP Presidential Candidates Can’t Reform Health Care

In the last few days, Scott Walker and Marco Rubio released health care plans, and other Republican candidates are sure to follow soon. Most will probably be pretty similar, even if some are more fully fleshed out than others.

But they’ll all share one feature, the thing that tells you that they aren’t even remotely serious about this issue: they will take as their starting point that the entire Affordable Care Act should be repealed.

I say that that shows they aren’t serious not because I think the ACA has done a great deal of good, though I do think that. I say it because it shows that they’re completely unwilling to grapple with both the health care system as it exists today, and how incredibly disruptive the wholesale changes they’re proposing would be. Walker’s plan even says, “unlike the disruption caused by ObamaCare, my plan would allow for a smooth, easy transition into a better health care system.” This is the health care equivalent of thinking the Iraq War would be a cakewalk.

The reality is that repealing the ACA now that it has been implemented would mean a complete and utter transformation of American health care. Republicans have often lamented that the law was so terribly long and included many different rules and regulations — yet now they act as though the law amounts to just a couple of rules here and there that can therefore be tossed out without too much trouble. But they were right the first time: the law is indeed complex, and has brought hundreds of changes big and small to American health care, not just in how people get insurance but in how Medicare and Medicaid work, how doctors and hospitals are paid, and in all sorts of other areas.

The ACA established health care exchanges. It brought millions of people into Medicaid, it closed the Medicare prescription drug “doughnut hole.” It gave subsidies to small businesses. It funded pilot projects to explore new means of providing and paying for care, it imposed new regulations on insurance companies. It created new wellness and preventive care programs, it provided new funding for community health centers. It did all that, and much more. You can argue that each one of these was a good or a bad idea, but you can’t pretend that unwinding them all would be anything resembling a “smooth, easy transition.”

We know why every Republican health care plan has to start with repealing the ACA: politics. Republicans have spent the last five years telling their constituents that they’re going to repeal it any day now, and they’ve held over 50 repeal votes in Congress. They’ve refused to admit that a word of it has any merit, even as they try to incorporate some of its more popular reforms (like protections for people with pre-existing conditions) into their own plans. So they’ve backed themselves into a corner where whatever any Republican offers has to start with repeal.

Which is why all their plans, the ones that have been released and the ones yet to come, are absurdly unrealistic. They pretend that it will be no problem to completely transform the American health care system — and there will be no losers in such a transformation, only winners — which shows that they have no intention of actually doing so. In fact, I’d go so far as to say that if a Republican gets elected next November, he’ll be relieved when his health care plan dies in Congress.

Let’s contrast that with how Democrats acted in 2008, when there was a vigorous debate in the presidential primary over health care. The three leading candidates, Barack Obama, Hillary Clinton, and John Edwards, all had very similar plans, similar because they reflected the Democratic consensus on health care reform that had evolved in the decade and a half since Bill Clinton’s reform effort failed. One major disagreement was over whether there had to be an individual mandate — Clinton’s plan had one, and Obama’s didn’t — but when he took office, Obama accepted that the mandate was necessary to make the entire plan work. It wasn’t a fantasy plan that just pandered to liberal hopes, it was something that could actually pass and be implemented.

Whenever liberals told Obama that a single-payer health plan would be far superior to what he was proposing, he would respond that if we were starting from scratch, that would probably be true. But, he’d say, we aren’t starting from scratch, so the ACA has to accommodate itself to the health care system that already exists. The result was a gigantic kludge, new complexity layered on top of an already complex system in an attempt to solve its varied shortcomings. Like all kludges, it seemed like the realistic option given the situation we confronted, but it left us with something that was far from perfect.

A Republican who actually wanted to pass real health care reform would have to approach the problem the same way: by saying that for better or worse, the Affordable Care Act has already affected the system in profound ways, so any realistic plan has to understand what those changes are, and find the most efficient way to keep the ones that are working and change the ones that aren’t. That doesn’t mean that repeal is impossible, just that it would be a spectacular upheaval, one that I promise you Republicans have no genuine appetite for. Remember all the screaming and shouting they did over the people on the individual market whose previous plans didn’t qualify under the new regulations, and who had to shop for new plans? Multiply that by ten or twenty times, because that’s how many people would likely lose their existing coverage if you repealed the ACA in one fell swoop.

And that would be only the beginning. So when any Republican candidate says he or she has a plan to reform health care, take a close look. If it starts with repealing the ACA — and it will — then you’ll know it isn’t serious and it’s never going to happen.

 

By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The PlumLine, The Washington Post, August 20, 2015

August 21, 2015 Posted by | GOP Presidential Candidates, Health Reform, Obamacare, Republicans | , , , , , , | 1 Comment

“The Free Market Failed”: Here’s Some More Good News About Obamacare. Too Bad It Won’t Dent The Debate

Whenever a health insurer announces that it will be requesting significant premium increases in the coming year, it’s guaranteed to generate news stories that are waved triumphantly by conservatives as proof that the Affordable Care Act is a failure and, just as they predicted, premiums are skyrocketing because the government is messing around in health care.

When a story like this one comes along, on the other hand, it seems to generate much less attention:

California’s Obamacare exchange negotiated a 4% average rate increase for the second year in a row, defying dire predictions about health insurance sticker shock across the country.

The modest price increases for 2016 may be welcome news for many of the 1.3 million Californians who buy individual policies through the state marketplace, known as Covered California.

California’s rates are a key barometer of how the Affordable Care Act is working nationwide, and the results indicate that industry giants Anthem and Kaiser Permanente are eager to compete for customers in the nation’s biggest Obamacare market.

Leading up to Monday’s announcement there had been a steady drumbeat of news about major insurers outside California seeking hefty rate hikes of 20% to 40% for Obamacare open enrollment this fall.

Keep in mind that before the ACA went into effect, annual premium increases of 10 percent or so had become the norm. California is only one state, and when you go across the country the picture is complicated — in some states premiums are rising more slowly than they did before the law; in other states they’ve jumped; and in some places they’ve declined. There are many reasons why. But what’s important to understand is that the predictions of the law’s critics — that both overall health spending and premiums would explode — were completely wrong.

The key word in this story comes in the first paragraph: “negotiated.” California is one of the states where officials running the health care exchange negotiate with insurers over rates, and when you have a negotiation, you can get better terms for the people you represent. Yet incredibly, we’re still arguing over whether what the health insurance market needs is less government involvement and more of that free market magic.

So for the millionth time: the reason we have the world’s most expensive health care system is precisely because the free market failed.

If conservatives were right and government is the problem, then in all the world’s other advanced nations, where there is much more government regulation of health care than we have, they’d be paying more for their health care than we do. But they spend far less, often with better health outcomes and usually with virtually no uninsured. And after watching this debate for the better part of a decade, I’ve yet to hear a single conservative explain why that’s the case, and how it squares with their beliefs about government and markets. How can it possibly be that government-heavy systems — whether you’re talking about a completely socialized one like Great Britain’s or a system like France’s that combines a basic government plan with heavily regulated private supplemental insurance — work so much better and cost so much less than ours? If you have a religious belief that markets are always right and government is always wrong, it’s just impossible to reconcile.

The point isn’t that the ACA is a perfect piece of legislation that has solved all our problems, because it isn’t and it hasn’t. The ACA is a gigantic kludge layered on top of what was already a terribly dysfunctional system. Health insurance in America remains incredibly complicated — for instance, if you’re on an exchange, in order to get the best rate you may have to shop around every year. Unfortunately, Republicans have made it impossible to fix the law’s weaknesses as we used to do with complex legislation, because they’ve fed their constituents a lie that any day now they’re going to repeal the whole thing, so there’s no point in trying to make it work better (and that doing so would be a compromise with evil, of course).

Fifty years ago this Thursday, Lyndon Johnson signed Medicare into law. At the time, Republicans predicted not only that the program would be a failure, but that it would send America hurtling toward a socialist nightmare of oppression. Ronald Reagan famously said that if the law passed, “we are going to spend our sunset years telling our children, and our children’s children, what it once was like in America when men were free.” Yet this big-government, single-payer health insurance program for seniors turned out to be one of the most successful and popular pieces of legislation in American history. Not only that, due in part to the Affordable Care Act, the projected future cost of Medicare keeps going down — another conservative prediction about the ACA that has proven wrong by 180 degrees.

And today, Republicans pretend they love Medicare and only want to preserve it, while they present plans that would eliminate its guarantee of coverage and turn it into a voucher program, on the failed theory that whatever the private sector does in health care must be superior. These efforts always fail, because the program is just too popular.

The ACA isn’t politically bulletproof in the same way, in large part because it’s so many different things. No one “has” Obamacare in the way you have Medicare, with a card in your wallet; in fact, tens of millions of people are affected by the ACA, usually in positive ways, without ever realizing it. But here’s a crazy idea: What if we looked at where the law is succeeding and tried to build on that success, and looked at where it isn’t and tried to correct those shortcomings, doing it all with the best understanding of the actual facts we can gain?

Oh, who am I kidding.

 

By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, July 28, 2015

July 29, 2015 Posted by | Affordable Care Act, Conservatives, Health Insurance Premiums | , , , , , , | 1 Comment

“John Roberts To America; I’m In Charge Here”: A Blunt Message To Politicians To Stop Abusing The Judiciary

When, just over two years ago, right-wing superlawyer Michael Carvin filed his first lawsuit seeking to deny Affordable Care Act tax credits to millions of individuals in states with federally operated exchanges, die-hard ACA opponents saw one reason why the Supreme Court might use an isolated four-word phrase to sabotage the ACA—that all five conservative justices would vote their political gut. As decision day approached, many ACA supporters (including me) suspected that the challengers’ political appeal might only be overcome if one or two of the conservative justices—Anthony Kennedy and/or Chief Justice John Roberts—would embrace states rights–based constitutional arguments to save the law.

Last Thursday, when the Court issued its decision in the case, King v. Burwell, all these hopes and fears about the political and ideological vectors at play, specifically, with Roberts, turned out to be dead wrong. The chief justice had bigger fish to fry—personal, institutional, and policy priorities—that led him to uphold the Obama administration’s decision to make tax credits available nationwide:

  • Asserting his personal leadership of the Court, by mobilizing a 6-3 bipartisan majority, and taking the heat for writing a no-holds-barred, decisive opinion in the most politically divisive case on this year’s docket;
  • Continuing an ever more evident drive to advance the Court’s power vis-à-vis the two elected branches, as the final decider and major direction-setter on the nation’s most fought-over policy issues;
  • Sending a blunt message to conservative activists, lawyers, and politicians to stop abusing the judiciary as a handy back-door gimmick to reverse political defeats they have been unable to reverse in political arenas—in particular, to stop bringing cases designed to “undo” the ACA;
  • Sending a subtle, gratuitous, but nevertheless quite discernible piece of policy advice to Republican politicians and policy-makers, in the form of a reminder of the ACA’s Republican ancestry in Massachusetts’ 2006 Romneycare reform law, referencing that model’s conservative credentials as a way to “expand coverage” while relying on private health insurance markets.

As the litigation made its way toward the high court, ACA opponents had been upfront about their bet that conservatives on the bench shared, and would act on their animus to the president’s signature legislative accomplishment. In September 2014, after the full D.C. Circuit Court of Appeals had voted to vacate and rehear a 2-1 decision in his favor, Carvin candidly opined that raw partisan politics would drive the Supreme Court to preempt the appellate court’s consideration of the case: “I don’t know that four justices, who are needed to [grant review of the case] here . . . are going to give much of a damn about what a bunch of Obama appointees on the D.C. Circuit think.” Asked if he believed he would lose the votes of any of the five conservative justices, he smiled and said, “Oh, I don’t think so.” Carvin’s cynical take was hardly unique; some of his allies openly forecast that Roberts would feel a need to appease conservatives who excoriated him for his 2012 vote to save the ACA.

Last Thursday, Roberts dashed conservative hopes and liberal fears of a partisan political decision. To the contrary, as conservative blogger Josh Blackman ruefully explained on a Federalist Society post-mortem conference call, the decision effectively seemed to elevate the ACA into a kind of “untouchable super-statute that is beyond reach.” Blackman characterized Roberts’s message as, “This is over . . . We’re through”—meaning, we’re through hearing cases ginned up by our clever lawyer friends to precipitate judicial de facto repeal of the law. Roberts’s brush-off of these core allies was foreshadowed by remarks he made at the University of Nebraska a few days before Carvin bared his cynical partisan take on the conservative justices. Then the chief justice said he was “worried about people having [the] perception” that the Court is no less a political body than Congress or the presidency. He attributed this trend to polarization in the elected branches, saying that he did not “want that to spill over and affect us.” Though widely disregarded at the time as standard civics class pap, it now appears clear that Roberts was serious and motivated by clear-eyed concern about the Court’s stature. As he observed in his 2005 confirmation hearings, “It is a very serious threat to the independence and integrity of the courts to politicize them.” King v. Burwell posed just such an institutional threat, and it was his job as chief justice to dispel it.

But to Roberts, protecting the Court’s reputation does not mean staying above the fray, much less retreating to the sidelines. On the contrary, the decision showed how focused he is on enhancing the Court’s power, well understanding that its non-political image is, ironically, essential to its clout. His opinion reasoned that, read in the context of the overall statute and Congress’ “plan,” the four-word phrase “established by the state” on which the challengers relied was “ambiguous.” When statutes are ambiguous, long-standing black-letter law requires courts to defer to an agency’s reasonable interpretation, rather than impose an interpretation that the court considers correct. But Roberts did not take that route. Instead, he said, the Court must decide for itself what the law means, on the ground—never before asserted so categorically—that the availability of ACA tax credits is “a question of deep economic and political significance that is central to this statutory scheme.” Of course, he then held that the administration’s interpretation was the right call. Administrative law experts were quick to note that, in the words of Ohio State law professor Chris Walker, “King v. Burwell—while a critical win for the Obama Administration—is a judicial power grab over the Executive in the modern administrative state.”

Roberts’s yen to project the Court as a player on the policy question of “deep economic and political significance” posed by the case was also manifest in another theme of his opinion, understated but audacious. Not only did he note the ACA’s roots in Romneycare, but he underscored that law’s record of effectiveness in reducing the “uninsured rate in Massachusetts to 2.6%, by far the lowest in the Nation,” and then went on to observe that the ACA “adopts a version of the three key reforms that made the Massachusetts system successful” (emphasis added), including the affordablity tax credits at issue in King, as well as the “individual mandate” that Roberts upheld as a pay-or-play tax incentive in 2012 in NFIB v. Sebelius. This and other notably favorable descriptions of the ACA in Thursday’s opinion seem aimed at Republican policy-makers and politicians. His message recalls his 2012 approval of the law’s individual mandate as an optional tax incentive—preferable, he wrote, because the “taxing power does not give Congress the same degree of control over individual behavior” as a Commerce Clause–based absolute mandate.

As I wrote after the NFIB decision, Roberts took this policy argument from a 2011 D.C. Circuit opinion by fellow George W. Bush appointee Judge Brett Kavanaugh; that opinion favorably portrayed the ACA as potentially “the leading edge of a shift” to “privatize the social safety net and government assistance programs.” In these opinions, Kavanaugh and Roberts seem to be pitching a line favored in conservative policy circles prior to the recent rise of tea party-style anti-government absolutism—keep and expand the national safety net, but privatize and regulate it through incentives rather than commands. With his decisions in NFIB v. Sebelius and King v. Burwell, however, John Roberts has gone further than merely touting that big-government conservative model for safety net governance, casting the ACA as a product of that model. He has used his power to entrench it—against demands from the left for a command-and-control version of the ACA individual mandate, and against conservatives’ strategy of killing the ACA in court. This, Roberts concluded, is “the type of calamitous result that Congress plainly meant to avoid”—and which, the chief justice made crystal clear, he will be loath to permit, in this case and any other challenge the law’s opponents might cook up.

 

By: Simon Lazarus, Senior Counsel to the Constitutional Accountability Center; The New Republic, June 27, 2015

June 29, 2015 Posted by | John Roberts, King v Burwell, Republicans | , , , , , , | Leave a comment

“Antonin Scalia Defeated — By Antonin Scalia”: He Had His Own Previous Arguments Turned Against Him

Justice Antonin Scalia did not simply lose today’s key ruling on the federal health insurance subsidies for the Affordable Care Act — he had his own previous arguments turned against him.

The majority opinion issued today, written principally by Chief Justice John Roberts — whose crucial vote previously upheld Obamacare back in 2012 — illustrated the idea of the insurance subsidies being an integral part of health care reform itself.

And the absurdity of just striking out subsidies for people living in states with federally run exchanges — as Scalia and his fellow dissenters insisted had to be done under the law — was illustrated by citing… Antonin Scalia, from his earlier efforts to stamp out health care reform.

It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius, 567 […] (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) […] (“Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”).

That is, Roberts and company cited the dissent in the first major Obamacare case, from 2012, when the dissenters — Scalia being one of them — tried to say that pretty much each every single facet of the Affordable Care Act was not only wrong but unconstitutional, and that they interlocked so completely that by striking down even one of them, the entire Act would have to fall.

As a political staffer friend, who is a trained lawyer (though not currently practicing), tells me: “The problem with results-oriented jurisprudence is it makes hypocrisy easy to spot.”

The full paragraph in that original dissent is as follows:

In the absence of federal subsidies to purchasers, insurance companies will have little incentive to sell insurance on the exchanges. Under the ACA’s scheme, few, if any, individuals would want to buy individual insurance policies outside of an exchange, because federal subsidies would be unavailable outside of an exchange. Difficulty in attracting individuals outside of the exchange would in turn motivate insurers to enter exchanges, despite the exchanges’ onerous regulations. […] That system of incentives collapses if the federal subsidies are invalidated. Without the federal subsidies, individuals would lose the main incentive to purchase insurance inside the exchanges, and some insurers may be unwilling to offer insurance inside of exchanges. With fewer buyers and even fewer sellers, the exchanges would not operate as Congress intended and may not operate at all.

 

By: Eric Kleefeld, The National Memo, June 25, 2015

June 28, 2015 Posted by | Affordable Care Act, Antonin Scalia, King v Burwell | , , , , | Leave a comment

“Conservatives Lost Outright”: John Roberts, Liberal Hero; How The Chief Justice Destroyed The Conservative Case Against ObamaCare

Since ObamaCare passed in 2010, Republicans have been searching desperately for a way to destroy the law through legal trickery (or as they call it, “judicial activism”), since they don’t have the means to kill it through legislation. In 2012, with the Supreme Court decision NFIB v. Sebelius, they got a partial victory, with the court badly wounding the law’s Medicaid expansion but leaving the rest unharmed.

In the case decided on Thursday, King v. Burwell, conservatives sought to cripple the insurance markets in states that had not set up their own health care exchanges. They did this by advancing a spurious reading of the Affordable Care Act (ACA) that would forbid insurance subsidies from flowing through the federal exchange website, thus devastating the private insurance markets in those states.

This time, conservatives lost outright. Chief Justice John Roberts, joined by Justice Anthony Kennedy and the four liberals on the bench, wrote the opinion — and it delivers a stark rebuke to the conservatives who have been fumbling around for an alternative to ObamaCare since 2010. “Repeal and replace” has been their mantra, but they never even got close to uniting around an actual replacement policy. Today, Roberts shows us why: It’s impossible.

King focused on a single phrase in the ACA, “established by the State,” which, taken out of all legal and policy context, could be construed to restrict subsidies to the state exchanges only. Because the Chevron doctrine requires that, in case of ambiguous wording, the implementing agencies get to decide how to interpret a law (in this case the IRS), it was necessary to construct an alternate history of the ACA. In this version, Congress meant to restrict subsidies to the state exchanges, to coerce states into creating one.

Liberals carefully explained that no, that was a completely insane version of ObamaCare’s history. Health care policy reporters, the staffers who drafted the law, and members of Congress who voted for it all swore up and down that this had never even been seriously discussed, let alone that it was their intention. State-level politicians, who are responsible for deciding whether to create their own exchanges, reported they had never heard of such a threat. Why would Congress create a mechanism to force states to do something, and then never mention it?

Roberts’ opinion delivers total victory to the liberal case. First, he examines the statute and finds that, in fact, it is not ambiguous — the government’s interpretation is correct. He writes that, considered in context, the plaintiff’s reading of “established by the State” would make great swathes of the rest of the law totally nonsensical. The ACA clearly states that all exchanges are to provide qualified plans to qualified people, which would be impossible for the federal exchange without subsidies. Moreover, why would the law provide for a creation of a federal exchange at all, if nobody can actually use it?

Second, and more fundamentally, Roberts finds that the plaintiff’s reading of ACA is poles apart from the obvious policy intention of the law. He accurately describes ObamaCare’s three-pronged approach: guaranteed issue and community rating, requiring insurance companies to offer policies to everyone at a reasonable price; an individual mandate, so that healthy people will participate in the risk pool; and subsidies for people who can’t afford the insurance.

All three are necessary for ObamaCare to work, but the plaintiffs’ reading would eliminate two of the three prongs in states without their own exchange. Subsidies would go, and so would the individual mandate, because it doesn’t apply if people are spending more than 8 percent of their income on a policy. Roberts notes that this would likely cause an insurance death spiral in those states, as healthier people flee an increasingly expensive market, turning the ACA into a health insurance doomsday device. Indeed, just such a death spiral happened in several states before ObamaCare passed — which is partly why it included all three prongs. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” he concludes.

That brings me to the “replacement” rhetoric. Roberts’ clear account of ObamaCare’s policy mechanism, and the damage that would be done should any of its main prongs be removed, deals a body blow to the conservative health care wonks who have been trying to cook up a replacement policy for the last five years — in particular, a plan without the unpopular individual mandate. But as Roberts plainly shows, that leads straight to disaster.

It’s an implicit concession that ObamaCare is the most conservative possible policy that could get even close to universal coverage — if five years of Republican policy failure weren’t enough evidence.

 

By: Ryan Cooper, The Week, June 25, 2015

June 28, 2015 Posted by | Affordable Care Act, Conservatives, King v Burwell | , , , , , , , | 2 Comments

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