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“Interpreting A Statute Requires Reading All Of It”: Challenge To Affordable Care Act Hinges On 4 Words In Isolation, Not The Full Law

When the Supreme Court hears oral arguments in King vs. Burwell, all eyes will be on Chief Justice John G. Roberts Jr., to try to figure out which way he’s leaning. After all, this case is the latest challenge to the Affordable Care Act, and the last time the law was before the high court, Roberts was the deciding vote in favor of the government. There’s one very good reason to think the chief justice will rule for the government again: He’s too good a lawyer to do otherwise.

King is all about the meaning of the Affordable Care Act, specifically, whether the law makes tax credits to low- and middle-income Americans available to all individuals who qualify based on income, or only to those who live in states with state-run healthcare exchanges. The plaintiffs argue that tax credits aren’t available to individuals who purchase their insurance on exchanges run by the federal government. But it’s difficult to imagine a legal mind like Roberts’ agreeing with an argument as weak as the one the plaintiffs have offered.

Interpreting a statute requires reading it carefully — all of it. You can’t just look at a few words in isolation. As Justice Anthony M. Kennedy wrote in 2006 (in an opinion that Roberts joined), “Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.”

When you look at the entire law, it’s clear that tax credits should be available on all exchanges, both state and federal. The statute defines who qualifies for a tax credit based on income level (not state of residence), and it also makes clear that federal exchanges are the functional equivalent of state-run exchanges by requiring that states set up exchanges, but allowing the federal government to set up “such exchange(s)” in their stead if they elect not to.

To now argue otherwise, the plaintiffs in this case rely on just four words in the law — “established by the State” — that appear in the formula for calculating the amount of the credit (not in the provision defining which individuals qualify for it). But a careful reading of the statute shows that those four words are there to make clear that the relevant exchange for calculating the amount of the credit is the exchange in the state where the individual purchased his or her insurance (state-run or not).

This problem is fatal to the plaintiffs’ argument, as the chief justice should surely recognize. But there are many other problems with their argument, as has become increasingly clear in the run-up to oral argument. Most significant, the plaintiffs have long maintained that Congress intentionally limited tax credits to encourage states to set up their own exchanges. The members of Congress who led the passage of the law have always said otherwise. As a number of the chairs of the committees that crafted the Affordable Care Act wrote last year, “None of us contemplated that the bill as enacted could be misconstrued to limit financial help only to people in states opting to directly run health insurance marketplaces.”

Indeed, the evidence against the plaintiffs’ case on this point is so strong that in their most recent filing with the Supreme Court, they argue that it is “irrelevant whether Congress subjectively intended” to limit the tax credits. The plaintiffs may hope that these holes in their legal argument don’t matter. But these points should matter to the chief justice and the rest of the court.

There’s already been a great deal of speculation about why Roberts might rule for the government. Some pundits and court watchers have pointed out that a ruling for the plaintiffs in this patently partisan attempt to gut the Affordable Care Act might impair the legitimacy of the court. Others in the legal and business communities have noted that a ruling against the government would result in significant chaos and disruption to insurance markets in the affected states because the tax credits are necessary for the law’s other market reforms to work properly.

These points are both right. But if the chief justice votes for the government, as he should, the reason may be far simpler: He’s too good a lawyer to do otherwise.

 

By: Brianne J. Gorod, Appellate Counsel at the Constitutional Accountability Center, was an author of the brief filed on behalf of some members of Congress and state legislators in King vs. Burwell. She wrote this for the Los Angeles Times; The National Memo, March 2, 2015

March 4, 2015 Posted by | Affordable Care Act, King v Burwell, U. S. Supreme Court | , , , , , , , | Leave a comment

“Obamacare By Any Other Name”: An Unnecessarily Complicated Way To Undo Harm Caused By A Crisis Of Their Own Creation

This is kind of brilliant; it might be the perfect illustration of the state of the modern GOP. The Examiner’s Byron York is reporting that a group of GOP senators is working on a plan to undo the damage that would be done if the Supreme Court rules against the government in King v. Burwell.

For those not familiar with it, the case, which the court will hear next week, turns on the question of whether people who buy health insurance in federal exchanges (in the 34 states that didn’t set up these Obamacare-mandated marketplaces) are eligible for tax subsidies to help pay for health care.

If the court does knock out the subsidies, it could cause havoc in insurance markets – a recent RAND Corporation study estimated that 8 million people could lose their insurance, while the American Academy of Actuaries warned Secretary of Health and Human Services Sylvia Burwell this week that companies could be facing insolvency if the King ruling drives the markets into death spiral territory.

So on the one hand conservatives would come close to achieving their goal of wrecking Obamacare at any cost; on the other hand, they’re starting to realize there would actually be, you know, a cost, both in human and political terms. “We’re worried about ads saying cancer patients are being thrown out of treatment, and Obama will be saying all Congress has to do is fix a typo,” one senior GOP aide told York. (No doubt the actual fact of cancer patients being thrown out of treatment would also be upsetting to this aid.)

So Republicans are looking for a way to restore the government expenditures they have worked so hard to eliminate. Well, not the actual expenditures; a totally different set that would perform the same function but – this is important – would be called something else that didn’t have the word “Obamacare” in it. “GOP lawmakers have decided to keep the money flowing,” York wrote. “Maybe the payments won’t be called subsidies, but they will be subsidies. The essence of Obamacare – government subsidizing the purchase of health insurance premiums – will remain intact.”

Of course, the senior GOP aide’s hypothetical Obama would be correct: All Congress would have to do to fix a harmful King decision would be to pass a law saying that people in the federal exchanges are in fact eligible for the subsidies. But the modern GOP isn’t big on taking the most direct route to the conclusion at which they’ll inevitably arrive. (See, for example, the current ritualistic huffing and puffing from House Republicans – yes, we’ve seen this show before – and various fallback positions en route to the inevitable full, clean funding of the Department of Homeland Security.)

This is the apotheosis of the 21st century GOP Congress: It is seeking an unnecessarily complicated way to undo or prevent harm caused by a crisis of its own creation. This is the fiscal cliff, again; this is the shutdown fight, again; this is the debt ceiling fight(s) all over again.

And it’s also important to keep in mind that this effort to undo the GOP’s avowed goal is angels-on-the-head-of-a-pin stuff. Five years on, the GOP has yet to produce a plan encompassing the latter half of their “repeal-and-replace” mantra; merely ensuring insurance for 8 million people is presumably an easier lift, but no one should hold their breath waiting for a unified Republican plan. This is especially true given that the party’s activist base will label any such effort as an embrace of Obamacare.

Probably nothing will see the light of day. But if the GOP can produce a bill to fix its problem, you can bet that first we’ll repeat the same kabuki where GOP hardliners dream up the demands they’ll make in exchange for ending ongoing harm to the economy. To borrow a maxim from “Battlestar Galactica,” all of this has happened before, and will happen again.

 

By: Robert Schlesinger, U. S. News and World Report, February 27, 2015

March 3, 2015 Posted by | Affordable Care Act, GOP, King v Burwell | , , , , , , | Leave a comment

“GOP Irrational Hostility”: A Mean-Spirited Interpretation Would Deny Millions Health Care Coverage

Millions of Americans only recently rescued from worry and hardship by acquiring health insurance now face losing it because Obamacare’s foes won’t end their obsessive opposition.

The latest threat to the Affordable Care Act is a Supreme Court case, due to be decided this spring, that will determine whether all Americans are eligible for the subsidies that make coverage affordable. The Court should allow working families all across the country to keep their life-saving subsidies.

The case turns on the kind of technicality that only a lawyer could love. The law says citizens are eligible for subsidies purchased through health-insurance exchanges established “by the State.”

Because of intense ideological hostility, 36 state governments betrayed their uninsured residents and refused to set up exchanges. In those cases, the law called for the federal government to set up exchanges for the states.

Obamacare’s implacable enemies are arguing that only Americans who were lucky enough to live in the 14 states that set up their own exchanges are eligible for subsidies, thereby excluding those who live in two-thirds of our country.

Since 85 percent of purchasers need subsidies to make insurance affordable — the subsidies cut monthly premiums on average from $346 to $82 — that nonsensical, mean-spirited interpretation would deny millions of working Americans decent health insurance.

That’s not what Congress intended when it passed the most sweeping reform of American health care in nearly 50 years. It didn’t mean to punish millions of citizens by denying them health insurance because of what state they live in. The architects of reform — the chairmen of the relevant committees — confirmed this obvious truth in a recent op-ed.

And it’s not only the five million Americans losing coverage who will suffer if the Supreme Court rules against national subsidies. The whole system will risk collapse as healthier enrollees succumb to the cost squeeze first and drop out, leaving sicker, more desperate, more expensive clients behind. Other components of the law — such as the one requiring large employers to offer coverage to their workers — could also be questioned in states that didn’t establish their own exchanges.

Trying to downplay the impact of a potential decision that would cut off millions of Americans from their health insurance, some Obamacare opponents claim states would quickly set up their own exchanges in response.

But there’s no sign that irrational hostility has weakened much to the law — even as millions of Americans experience its benefits, and besides, the vast majority of state legislatures will be out of session by the time the High Court rules in June, so no quick fix will be available.

Another answer would be to change the health-care law to remove any uncertainty about who’s eligible for subsidies, but of course the new GOP majority in Congress is too busy trying to repeal the law altogether to usefully amend it.

Indeed, the current legal attack on the Affordable Care Act is only part of an unrelenting five-year campaign of opposition, one that will presumably continue regardless of the Supreme Court’s decision in this case. There’s no clear historical precedent for so much time, effort and emotion being poured into resisting an improvement in the material well-being of fellow citizens.

Think how American health care could be improved if all that angry passion was redirected into fruitful cooperation! Not even its biggest supporters are content with the Affordable Care Act as it is. Health care is still too expensive, too many people are still left out, health outcomes are still disappointing.

But we can’t address those problems until fiery Obamacare opposition cools. The Supreme Court can help the process along by acknowledging that Congress intended for all Americans — not just those living in certain states — to have access to affordable health care.

 

By: William Rice, The National Memo, February 12, 2015

February 15, 2015 Posted by | Affordable Care Act, Health Exchanges, Republicans | , , , , , | Leave a comment

“Hurting A Large Number Of Their Own”: Republican Refusal To Expand Medicaid Could Come Back To Haunt Them

Republican legislatures in state after state, from Tennessee to Wyoming, are rejecting the Medicaid expansion of the Affordable Care Act for no other reason than pure spite against poor people:

On Friday, the Wyoming Senate shot down Gov. Matt Mead’s expansion plan, and a House committee then pulled its bill. The double whammy effectively killed the state’s chances of enacting the Obamacare option this year.

Lawmakers there acted just days after the Tennessee Legislature shot down an expansion proposal by Gov. Bill Haslam. Together, the two rejections diminish the momentum that Medicaid expansion supporters were enjoying last month, when Indiana Gov. Mike Pence won federal approval of his particular plan and Arkansas Gov. Asa Hutchinson agreed to extend that state’s “private option” program for 18 months. Both Pence and Hutchinson are also Republicans.

There’s simply no good reason for any of it, even within the confines of conservative economic orthodoxy. The money for the Medicaid expansion comes from the federal government; the states themselves are at no risk of further expense for many years to come if at all. Republican governors are trying to get the funding for the healthcare of their citizens. Better access to healthcare means fewer illnesses, better productivity, and more money in the pockets of the sorts of consumers most likely to spend in the economy. More money for Medicaid creates a virtuous economic circle at no cost to the states.

No doubt there is a great deal of racism in the motivation of conservative state legislators to deny healthcare to their poorest residents. But in fact, the majority of those on Medicaid are not minorities–and poor whites are overwhelmingly Republicans. So even from the jaundiced view of a bigot these GOP legislators are hurting a huge number of their own.

And it’s starting to cause problems for them. Republicans in Kentucky are doing backflips to pretend to their constituents that there’s some big difference between Kynect, Kentucky’s state exchange, and Obamacare. And even now some Republicans are defecting over it:

Former Republican state Sen. Tim Johnson on Wednesday announced he’s switching parties and challenging incumbent Republican Lt. Gov. Tate Reeves this year.

But the noted Elvis impersonator said he won’t be appearing as the King on the campaign trail.

“Why join the Democratic Party and run for lieutenant governor?” Johnson said before a cheering throng of supporters at a Capitol press conference. “I’ll tell you: We are all Mississippians first. Elected officials should be in the business of helping all Mississippians, not picking out who to hurt.”

The Republican Party has relied for decades on cultural and racial resentment to keep them afloat. But there’s only so long a political party can only abuse the entirety its own people without even an eye toward sowing cultural division, without it coming back to haunt them.

 

By: David Atkins, Political Animal, The Washington Monthly, February 7, 2015

February 9, 2015 Posted by | Medicaid Expansion, Republican Governors, State Legislatures | , , , , , , , | Leave a comment

“The Obamacare Plaintiffs And Medicare”: Maybe They’d Love Obamacare If The Hated President’s Name Wasn’t On It

Politico‘s Jennifer Haberkorn scored a bit of a scoop by convincing the chief plantiff in the King v. Burwell litigation, David King, to let her into his Fredericksburg, VA living room, apparently because he didn’t want to leave her shivering on his front doorstep. Most of what she tells about him, though, seems to come from his recent social media expressions rather than from anything he said to her in person:

The man who could cripple Obamacare isn’t shy about telling the world that he thinks the president is an “idiot,” posting altered images of the first lady in Middle Eastern clothing and expressing his hatred for the “Democraps” who enacted the health care law.

Greg Sargent, however, finds something more interesting to examine about King and a couple of his co-plaintiffs:

[I]t’s fascinating that King is less than a year away from qualifying for Medicare. As it happens, Politico reports that two of the other four challengers are 64 and 63, also putting them very close to qualifying. Remember, this lawsuit is all about the plaintiff’s objection to being subjected to the individual mandate’s requirement that they get insurance. The plaintiffs are claiming injury because Virginia is on the federal exchange, which, they say, means they should not be getting the subsidies which are necessary under the law to require them to get insurance under the mandate. Yet three of the challengers are very close to having the mandate canceled for them by Medicare. (One, it should be noted, is 56 years old.)

It would be really interesting to know what these challengers think of Medicare, given their role in a lawsuit that could go a long way towards gutting the coverage guarantee for millions of Americans.

Unfortunately, we cannot answer Greg’s question yet, if ever. Maybe these folk share the not uncommon belief of seniors that Medicare is an “earned benefit” (at most half-true) in contrast to the “welfare” nature of Obamacare (again, at most half-true). Maybe they don’t like Medicare as it is but would like to “reform” it–though the most common Republican proposal for “reform” is to convert Medicare from being a defined government-provided benefit to a means-tested system of public subsidies for private insurance purchases like Obamacare. Maybe they’d love Obamacare if the hated president’s name wasn’t on it. It’s hard to say. But whatever their reasons, they’re willing to force millions of people who aren’t on the brink of qualifying for Medicare into a health care wilderness. No wonder they don’t want to give interviews.

 

By: Ed Kilgore, Contributing Writer, Political Animal, The Washington Monthly, February 6, 2015

February 8, 2015 Posted by | Affordable Care Act, King v Burwell, Medicare | , , , , , , , , | Leave a comment

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