“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
Halbig v. Burwell, the case in which opponents of the Affordable Care Act won a dramatic if temporary victory yesterday, has profound implications for millions of Americans’ health care. But it’s also a demonstration of a trend that is determining more and more of what our politics and our country are going to look like in future years.
We talk a lot about America being divided ideologically, with liberals and conservatives increasingly distrustful and dismissive of each other. But we’re also in the process of creating two different nations, where stepping across a state border means entering a society with profoundly different laws and policy goals. And Republicans may have just stumbled on a way to use the federal government to increase that division.
Both parties are driving this broad movement. In many Republican-controlled states, it’s now all but impossible for a woman to get an abortion; people are encouraged by the state government to bring their guns to church and into bars; and taxes are whittled away while social services are slashed. Democrats too have gotten more aggressive in places they control, on issues like raising the minimum wage, same-sex marriage, and legalizing marijuana.
But the challenges to the ACA have shown the Republicans a new path, a kind of federalized federalism, where they can not only make Red America a more conservative place through state laws, but exempt Red America from federal laws they don’t like.
This wasn’t part of a carefully laid-out plan. Initially Republicans were just using any and every means they could find to undermine the ACA, with the goal of destroying it completely. Though they failed to do that, they won their first significant (if partial) victory when the Supreme Court ruled that states could opt out of the law’s expansion of Medicaid, which meant that we have two different countries when it comes to health coverage for poor people. If you’re poor and you live in a blue state or one of the few red states that has accepted the expansion, you can get free health insurance. If not, you’re out of luck. See, for instance, this vivid New York Times article about the city of Texarkana, which lies half in Texas and half in Arkansas; whether you get health insurance is determined by which side of town you live in.
In the Halbig case, conservatives located a drafting error and pursued it for no reason other than that it looked like a promising vehicle for Republican-appointed judges to strike a blow at the law. Creating two different countries when it comes to the ACA wasn’t really the goal, but it could be the outcome.
Let’s imagine the Supreme Court upheld the D.C. Circuit panel’s decision. In the states that have already established state exchanges, nothing would change. With a few exceptions (like Kentucky and Idaho) these are blue states. Everywhere else, people would immediately lose the tax credits they received to buy insurance, reverting to the pre-ACA status quo. That means more people without insurance, and a system that is generally more cruel and unforgiving. The states that are Democratic-controlled or divided but haven’t yet set up an exchange, like Pennsylvania, New Jersey, and Maine, would probably move to do so in order to restore those subsidies to their citizens. Once it all shook out, you’d have a situation in which, for all intents and purposes, the most consequential social legislation passed through Congress in nearly half a century was operative in only half the country.
If that were to happen (and maybe even if it doesn’t), Republicans are likely to see a new means to accomplish their policy goals on any number of issues. If you can’t repeal a federal law you don’t like, maybe you can have it apply only to Blue America. Get a few creative lawyers together, and you can come up with a rationale for a lawsuit to allow states to opt out of almost any law; few can deny now that no matter how thin the legal reed you hang such a suit on, there will always be conservative judges who will embrace your logic. We could see a proliferation of opt-out amendments in Congress, as each significant piece of legislation is accompanied by an effort to give Republican states the ability to exempt themselves.
And don’t be surprised if perpetually vulnerable red state Democrats end up supporting those amendments from time to time, so they can give their party the votes it needs to pass bills, but also tell the folks back home that they stood up for states’ rights.
In 1932, Justice Louis Brandeis wrote in a dissenting opinion:
It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.
But the assumption has always been that when states act as laboratories of democracy, they’re exploring different ways to arrive at common goals. Increasingly, liberals and conservatives can agree only on the most abstract goals, like prosperity and freedom, but on almost none of the specifics. With the ACA as an example, Washington could become the new laboratory of division, where federal legislation and federal lawsuits become the means to drive Red America and Blue America further apart.
By: Paul Waldman, Contributing Editor, The American Prospect; Published in The Plum Line, The Washington Post, July 23, 2014
Today in a two-to-one decision a three-judge panel of the Court of Appeals for the D.C. Circuit delivered Republicans perhaps their biggest victory yet in their ongoing legal battle to destroy the Affordable Care Act. This case is far from over — it will probably be appealed to the full appeals court (where today’s decision is likely to be reversed) and then to the Supreme Court. But it demonstrates just how willing Republicans are to lay waste to Americans’ lives if it means they can strike a blow at Barack Obama and his health law.
In some of their challenges to the ACA, there was a legitimate philosophical or practical point Republicans were making. You or I might think the idea that a mandate to carry insurance constitutes the death of liberty is ridiculous, but at least it was a substantive objection. Not so in this case, Halbig v. Burwell. Here, Republicans literally found a legislative drafting error in the ACA that they hoped could be used to deal a near-fatal blow to the law, and two Republican-appointed appeals court judges agreed with them.
In a section of the ACA concerning the subsidies given to low- and middle-income people to buy insurance on the exchanges, the legislation refers to subsidies provided through “an Exchange established by the State.” Since over half the states didn’t create their own exchanges and ended up with the federal exchange, the plaintiffs argue that no one in those states should be eligible to receive subsidies. If they’re successful, it would mean that if you live in Kentucky, which has a state exchange, you can get federal subsidies to buy insurance, but if you live next door in Tennessee, which uses the federal exchange, you can’t.
Now pause for a moment and consider what it is Republicans are asking the courts to do here. They want millions of Americans to lose the subsidies they got this year, in many if not most cases making health insurance completely unaffordable for them, and their justification is this: We found a mistake in the law, so you people are screwed. As far as the Republicans are concerned, it’s like spotting that a batter’s toe missed second base as he was trotting around for his home run, and therefore claiming that they won the game after all.
But it’s not a game, it’s people’s lives. If they succeed at the Supreme Court, people will die. That’s not hyperbole. Millions of Americans will lose their health coverage — 6.5 million by one estimate — and many of them won’t be able to afford to go to the doctor, and many of them will have ailments that go untreated. People will die.
If you want to read a comprehensive analysis of how legally and logically absurd this decision was, I’d recommend this one by Ian Millhiser. Cases like this often turn on Congress’ intent in writing legislation, and in this case there is no question about that intent — at no point in the debate or drafting or voting did anyone say that if a state chose to use the federal exchange then the people in that state wouldn’t get subsidies. But if you read the majority’s decision, you can see the two Republican judges positively luxuriating in the drafting error for page after page, exploring every possible way in which it could trap the government into denying subsidies to people.
Most ridiculously, they assert that there’s just no way to know whether Congress actually intended that people in states using the federal exchange should get subsidies, so their intent can only be inferred by the phrase “established by the State.”
As I said, this is a temporary victory for the ACA’s opponents — the whole D.C. Circuit court is likely to reverse this decision, though what will happen at the Supreme Court is less than clear. But when you see Republicans raising glasses of champagne to congratulate themselves on how clever they are, remember what it is they’re celebrating. It isn’t that conservatism won some meaningful philosophical victory, or that they’ve managed to make the country a better place. All that’s happening is that they may have succeeded in taking health insurance away from millions of Americans.
By: Paul Waldman, Contributing Editor, The American Prsospect; Published at The Plum Line, The Washington Post, July 22, 2014
“Arrogance Cloaked In Humility”: Conservative Judges Are Ganging Up To Steal Your Affordable Healthcare
Tuesday morning, two competing courts – and the conservative judges turned silent partisan assassins that dominate them – put at risk the affordable health insurance on which millions of Americans have already come to rely. These six robed men in Washington and Virginia, within about two hours, have now set up yet another US supreme court showdown on the Obamacare law Republicans on Capitol Hill just couldn’t kill, despite trying more than 50 times.
Up first: an outrageous two-to-one decision by a panel of the Court of Appeals for the DC Circuit ruling against sensible subsidies that real people need, based on what we can charitably called the “reasoning” of the two Republican nominees on the three-judge panel – the opinion was written by an appointee of George HW Bush, along with a judge nominated by his son.
They were asked to decide on the legality of the subsidies based on the precise wording of the Affordable Care Act, which provided health benefits to non-affluent Americans purchasing insurance from federal exchanges newly established under President Obama’s signature health-care law. In the literal language of the statute, subsidies are available to those purchasing insurance on “state exchanges”, although a majority of exchanges were ultimately established in the states by the federal government because of state-level Republican hostility to the law. Sensibly, the Internal Revenue Service allowed anyone who purchased from any exchange – federal or state – to qualify for the subsidies.
The Bush-appointed judges, however, aren’t much for being sensible: they ruled instead that only those who purchase insurance from the exchanges established by the states are allowed subsidies.
In what can only be described as black comedy, the majority opinion concludes with paeans to judicial restraint. (One is reminded of Lewis Carroll’s Walrus, “deeply sympathizing” with oysters prior to having “eaten every one”.) “We reach this conclusion, frankly, with reluctance,” the majority wrote, going on to concede the following:
[O]ur ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly.
But they are compelled, you see, to inflict these consequences as a means of “ensuring that policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges.” For two judges to subvert the clear purpose of the law in the name of judicial restraint is, to borrow Justice William Brennan’s phrase, arrogance cloaked as humility.
The sole dissenting judge, Harry Edwards, in his tour de force dissent, made clear his distaste for appointed judges making new law – and pointed out that the majority opinion requires the courts to ignore all the sound principles of statutory construction.
Congress clearly thought the subsidies were essential to the functioning of the exchanges, and it permitted the federal government to establish exchanges in order to prevent states from thwarting the aims of the ACA – which is to help people buy more affordable health insurance.
The majority’s reading, however, would allow hostile states to do exactly what the law was designed to prevent: by refusing to establish a state exchanges, they could effectively stop all the exchanges from working properly.
As Edwards observes, the majority’s interpretation “is implausible because it would destroy the fundamental policy structure and goals of the ACA that are apparent when the statute is read as a whole”. Plus, not a single state government – even those hostile to the law – believed that the statute demands what the majority says it does. Nobody is confused about what the law intended, but some people who oppose the ACA on political grounds are opportunistically pretending to be.
Meanwhile, just across the Potomac River, the Fourth Circuit Court of Appeals was charged with hearing a different case on the same question. But it ruled in favor of the administration, effectively siding with the first ruling’s minority opinion. That’s the sort of legal dichotomy – however strange the buzzer-beater timing – that pretty much guarantees the supreme court will ultimately answer this question for all the Americans using the federal exchanges.
That’s slim comfort for some: while most of the law narrowly survived a constitutional challenge that made it to the supreme court, the number of Americans covered by it would be much higher had the court not used bafflingly illogical reasoning to re-write the act’s Medicaid expansion in a separate ruling, which made it easier for states to opt out of that provision.
That’s all part of the Republican strategy, of course: once they lost their battle in Congress to ensure that as many non-affluent Americans as possible would continue to experience the “freedom” of going without health insurance coverage, they’ve been throwing ad hoc legal arguments at the ACA, hoping that something would stick.
Don’t be fooled that the judges who hear these challenges are not influenced by the ongoing political partisanship. As Ian Millhiser of ThinkProgress demonstrated, both judges who ruled against the subsidies today are highly partisan Republicans.
Despite Republican efforts, a study in the New England Journal of Medicine published last week found that 20m Americans are now covered by the exchanges and Medicaid expansion created by the Affordable Care Act. For all its imperfections, the law is a striking policy success and has done a great deal to address a major national problem. However, the Republican party – and most of its agents on the federal courts – would still prefer the number of Americans who benefit from the law to be much lower, as evidenced by their legal strategy.
The only good news is that this decision against the subsidies may not stand. The federal government is expected to appeal for a hearing from the entire DC circuit court, and it is unlikely that the full court would reach the same conclusion. It’s also far from clear that opponents’ argument could command a majority of the supreme court, where the cases are probably headed.
But it’s still remarkable that an argument this legally weak – and with such destructive human consequences – could command support from the majority of an appellate panel. Given the active Republican hostility to the Affordable Care Act, and the party’s utter indifference to the fate of the millions of people is helping, there’s no way to be entirely confident that the supreme court won’t use the opportunity of a new case to take something else away from the Americans who need it.
By: Scott Lemieux, The Guardian, July 22, 2014
The Supreme Court’s recent decision in the Hobby Lobby case demonstrates that the court, at least the five justices who voted in favor of Hobby Lobby, has little concern for, and probably little understanding of, women’s health care. By ruling that corporations, on the grounds of the alleged religious views of their owners, can deny women access to some forms of contraception, the court set a horrible precedent that if followed will endanger the health and lives of many American women.
The Hobby Lobby ruling may at first seem like a victory for the minority of Americans who think that both abortion and contraception should be illegal, and for those who believe that the US should operate more as a theocracy than a country where state and church are separate. However, the ruling not only is terrible news for women seeking a guarantee of good healthcare through their employer, but also for anybody who believes in personal freedom.
In the US, where health insurance is linked to employment, health insurance is part of the compensation package. When most Americans are about to start a new job, or choosing between two or more jobs, one of the first questions they ask is about the quality of the health insurance they will get. In most cases, health insurance varies because some companies offer plans with lower co-pays, better dental care or things like that. Firms that deny dental care are doing it because of concerns about costs, not because they have an ethical or religious problem with healthy teeth. Hobby Lobby is doing something different, denying women access to some forms of health care because of the personal beliefs of the people who run the company.
This decision raises the question of whether the Supreme Court will next rule that employers can tell workers how to spend the money they earn at their jobs. This sounds a bit extreme, but in a very real way that is precisely what the court just did. By limiting how workers can use some of their compensation, the court, despite its own assertions that it was not setting a precedent, opened the door for further limitations. If Hobby Lobby can tell people how they can or cannot use their health care benefits, why can’t they also tell people they can’t, for example, use their salaries to donate to pro-choice political candidates or pro-marriage equality causes? The answer, one would think, would be obvious, but the recent court decision makes it considerably less clear.
The Republican Party has long, if not always sincerely, repeated a mantra of individual freedom, but the Hobby Lobby decision, in which all five justices who formed the majority were appointed by Republican presidents, undermines that. A central belief of all Republican politicians is that Americans should have a right to do what they want with, and keep as much as possible of, their hard-earned money. The Supreme Court made a big move against that idea this week, but the outrage from the Republican side has been absent.
Conservative opposition to healthcare have consistently argued that decisions about health care should be made by patients and doctors, not by the government. The death panel hysteria that Sarah Palin unleashed on the American people a few years ago took that point to a nutty extreme. After last week, conservatives who support Hobby Lobby should probably change their position and argue that health care decisions should be made not by a patient’s doctor, but by a patient’s employer. Similarly, for supporters of the Hobby Lobby decision, the new mantra of individual freedom should now be that Americans should be allowed to do whatever they want with their hard earned money, as long as their boss approves, but somehow that seems an unlikely campaign slogan for Ted Cruz or Marco Rubio.
The Hobby Lobby decision is about women’s health care and individual freedom, but it also is another sign of the consolidation of power by big corporations in the US. It is now legal for corporations to deny workers important medical services, and redefine their compensation packages, simply because, religious claims aside, they want to. During a very tenuous recovery in which real wages have not recovered, unemployment remains high and economic uncertainty on the part of working Americans is an enormous problem, the Supreme Court just gave more rights to corporations while taking wealth, as health care benefits are a form of wealth, out of the hands of working Americans.
By: Lincoln Mitchell, The Huffington Post Blog, July 6, 2014