“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
“All Aboard, Suckers”: Florida Taxpayers About To Be Railroaded
Here’s a really clever idea:
Let’s run express passenger trains 16 times round-trip every day between downtown Miami and the Orlando airport. That’s right, the airport.
Except the trains won’t go straight there, but will stop first in Fort Lauderdale and West Palm Beach, then head up the seaboard to Cocoa and hang a hard left 40 miles west across the middle of the state.
Oh, and the trip will take at least three hours one way.
Leaving aside the fact that you can inexpensively drive from downtown Miami to the Orlando airport in about the same time (or fly commercially in only 42 minutes), the project grandly known as All Aboard Florida raises other elementary questions.
Like, “Why?”
As it waddles down the tracks, this turkey enjoys the robust blessing of the Republican-led Legislature and Governor Rick Scott, who said the following to a reporter last month:
“It’s all funding that will be provided by somebody other than the state. It’s a private company.”
Scott’s either clueless or lying. All Aboard Florida is a future train wreck for taxpayers. With the possible exception of the Hogwarts Express, passenger rail services almost always lose money and end up subsidized by government.
All Aboard Florida already has applied for $1.6 billion in federal loans and plans to rent space at a new terminal at the Orlando International Airport, for which state lawmakers recently appropriated $213 million.
That’s just the beginning. According to the Scripps/Tribune Capitol Bureau, the company also wants the state to pay $44 million to connect its lines with Tri-Rail, the daily commuter link serving South Florida.
Only three short years ago, playing the Tea Party scrooge, Scott killed a proposed high-speed train project between Orlando and Tampa. In rejecting about $2 billion in federal funds, the governor asserted that Florida taxpayers would have ended up paying to operate the rail service once it was finished. He was right.
Now he’s yodeling a different tune, perhaps because his latest chief of staff, Adam Hollingsworth, formerly worked for one of the companies connected to All Aboard Florida. (When a reporter asked Scott if he’d talked to Hollingsworth about the project, he didn’t answer.)
Meanwhile, all along the proposed route, opposition is erupting. Here was the front-page headline in the July 13 Indian River Press Journal: ALL AGAINST ALL ABOARD.
Officials in Stuart, Fort Pierce, Vero Beach and other communities are rightly worried about the impact of adding 32 trains every day on the Florida East Coast tracks that All Aboard Florida plans to use.
The frequent stoppage of traffic at rail crossings is a major concern, especially because it will impede police, firefighters and other emergency responders. For residents and businesses near the track, the train noise and vibrations will be a recurring headache.
Indian River County Commissioner Bob Solari believes it could hurt local property values. And where the trains will cross busy waterways like the St. Lucie River, many say the repeated lowering of the railroad bridges will restrict boat travel and hurt the marine trades.
All Aboard Florida insists that its trains will be moving so fast that boaters and motorists won’t be inconvenienced for long periods, and it has promised to upgrade the road crossings to make them safer.
Few of the many critics seem reassured. Municipalities and counties fear they’ll be stuck with funding new infrastructure, just for the privilege of watching shiny locomotives whiz past all day long.
The whole project is anchored on the dubious notion that millions of people can’t wait to hop a train from Miami to the Orlando airport (via Cocoa). Although All Aboard Florida has sued to keep secret its ridership surveys, its website sunnily predicts that three out of four passengers will be tourists.
Tourists who are what … afraid to fly? Too scared to drive?
Talk about a narrow market.
And while it’s always beneficial to reduce the number of cars on the highway, this particular experiment can’t possibly break even. The only money will be made in the beginning with real-estate deals, by well-connected contractors working on new stations, modernizing the rails and laying 40 miles of fresh track between Brevard County and the land of Disney.
At this point, the momentum for All Aboard is all political, and only the rising outcry can derail it. Scott, who’s up for re-election, recently asked the Federal Railroad Administration to extend to 75 days the public-comment period that will follow the agency’s upcoming environmental impact study.
If the trains ever start running, spewing red ink with every toot of their horns, don’t be surprised if the state steps in to bail out the project, or asks the feds to do it.
Either way, we’ll get stung with the bill somewhere down the line.
All aboard, suckers.
By: Carl Hiaasen, Columnist, The Miami Herald; The National Memo, July 22, 2014
“Professional Bashers”: GOP Will Find A Way To Blame President Obama On Ukraine Jet Downing
The monstrous downing of a Malaysian jet liner apparently by Russian backed separatists in the Ukraine did something that few thought could happen. It has gotten GOP leaders momentarily to agree with President Obama when he pointed the finger squarely at Russia for the horrific attack. But don’t expect the GOP’s hand hold with Obama to last. GOP leaders have been relentlessly snipping at Obama from the moment that Russia muscled into the Ukraine, lopped off slices of its territory, and cheered on and supplied pro-Russian separatists in the nation with sophisticated weapons. Presumably those weapons include the kind of missile thought to have taken down the jetliner. If it’s shown beyond doubt that the rebels downed the plane and did it with a Russian supplied missile, GOP leaders almost certainly will renew their barrage of attacks on Obama.
As always, their attacks will have absolutely nothing to do with indignation and outrage over the mass killing. It will have everything to do with politics. In April, when Obama first talked with Russian President Vladimir Putin to get him to stand down on stirring up tensions in the country, GOP leaders pounced. They branded him as too weak, soft and conciliatory. The smear was a rerun of the same smears it has repeated time and again against him on the issues of national security and foreign policy.
The GOP has dusted off the script on every foreign policy crisis that’s popped up since Obama entered the White House. The list is endless: Somalia, Bin Laden, Afghanistan, Syria, and Iran and, of course, Benghazi. In each instance, just change the names and the rap is till the same, he’s weak, indecisive, and soft, and always the charge is that his alleged weakness somehow puts the nation at mortal risk. As in every one of the crisis’s that Obama allegedly bungled and jeopardized the nation’s security, the unreconstructed cold war hawks and professional GOP Obama bashers flatly declare that the U.S. must get tough, firm and resolute up to and including a military and even nuclear a saber rattle against a perceived American foreign enemy.
The Ukraine crisis has been no different. GOP leaders have called for Obama to do everything short of putting boots on the ground in the Ukraine to battle the Russian backed separatists. The only thing that has stopped those tempted to cross that line and make that call is the vehement overwhelming opposition of the American public. As horrible, bloody and now humanly catastrophic with the jetliner attack, the conflict is, it’s still a regional conflict in which the U.S., no matter how long and loud the saber rattle from the GOP, can do little beyond the strongest political and moral condemnation and sanctions. In themselves they are weak and for the most part ineffectual. As morally odious as the conflict is especially with its latest horrific turn, it still poses no direct threat to American security.
However, that means little to a GOP determined to score big in the mid-term elections. It will do everything it can to turn the heinous downing of the jetliner into yet another political indictment of Obama. They will scream louder to slap even tougher sanctions on Russia. Some of which are border on the absurd. This includes proposals to bar Russia from landing its Aeroflot planes in the U.S and other Western nation airports and even more dangerous and counterproductive, demanding that the U.S. arm the Ukraine military to the teeth. This almost certainly will guarantee a frantic arms race with Russia shipping even more heavy weaponry to the Rebels. The GOP nowhere explains exactly how any of this will bring Russia to its knees, to stop it from aiding the rebels or make airspace over Ukraine any safer.
Obama’s sensible option continues to be to redouble efforts through a combination of new sanctions which he did a day before the jetliner debacle that involved energy and banking transactions and negotiations aimed at stopping the flow of weapons and military support to the rebels. No matter how loud the war hawks scream about Obama’s actions, he has little choice but to try and help craft a solution through diplomacy. This hardly shows weakness, but recognition that the U.S.’s options are few.
The Malaysian jet liner downing was a senseless and heart-breaking tragedy that served absolutely no political or military purpose for the rebel separatists, if they indeed committed the dastardly deed. It will fuel even further the justifiable worldwide public rage at Russia and Putin. It will push Russia further to being branded a rogue state. Obama’s careful measures in dealing with the conflict have done much to insure that’s the case. The GOP’s inevitable finger point at him for the latest tragedy in the Ukraine will stand again as nothing more than the usual false, phony and opportunistic political pandering.
By: Earl Ofari Hutchinson, Associate Editor of New America Media; The Huffington Post Blog, July 19, 2014
“Common Murderer, Ordinary Thug”: Putin Is Trying To Reconstruct The Russian Empire
After the bloody suppression of a patriotic demonstration in Warsaw in 1861, Alexander Herzen wrote to Tsar Alexander II: “You have become a common murderer, an ordinary thug.” He also described the Russian press as “shameless” and “unscrupulous.”
Today, we should repeat the words of this great Russian, and direct them at Vladimir Putin and Russian propaganda-men who are lying ceaselessly and insolently. A while ago, we heard that Poland trained Ukrainian fascist squads that terrorized the Maidan; next we learned that Putinist conquerors of the Crimea bought their weapons and uniforms in stores and that the Kremlin had nothing to do with it. Now we are once again hearing about the Ukrainian state’s responsibility.
The 298 wretched victims of the crash of the Malaysia Air flight are a result of Putin’s ruthless and cynical policies. It was his decision to arm the so-called separatists who in reality are the Kremlin’s spy network and fifth column in the Donbass region. They were armed with Putin’s knowledge and approval. And these people are the ones who killed random, innocent individuals.
Putin—with his KGB lieutenant-colonel mentality—does not want to let Ukraine follow its own path toward democracy and Europe. He wants to reconstruct the empire. Inciting and upholding ethnic conflicts in Latvia and Estonia serves this aim, as does the creeping dismantling of Moldova, and maintenance of conflicts around Upper Karabakh. Indeed—this great power, great Russian chauvinism is the final and highest stage of communism. And Putin understands progress as gradual annexation of successive states.
The European Union—accustomed to peace and quiet—has neither determination nor an understanding of the growing threat. The clichéd faith in the possibility of placating the beast is replaying over and over again. The blindness and loyalty of European political and business elites gives reason for concern. But there is nothing that releases us—intellectuals active in culture, scholarship, and media—from the duty to say clearly, stubbornly, and emphatically: This is very dangerous. We are not allowed to repeat the naiveté once displayed by intellectual elites toward Hitler and Stalin. And back then we were not allowed to close our eyes to the annexation of Austria, Czechoslovakia, and the Baltic States.
My friend from Moscow says that there are two scenarios in which the Russian army will leave Ukraine: One realistic and the other miraculous. In the realistic scenario, Saint George will ride in on a dragon and use his fiery sword to chase this band of scoundrels away. That’s the realistic scenario. And the miraculous one? They’ll just up and leave on their own.
The policy of successive concessions leads nowhere. Putin is not a European-style politician; he’s a politician of permanent belligerence. Much seems to suggest that he has already let the genie out of the bottle—crowds of mercenaries are moving from Russia to Ukraine, crowds of sentimental monarchists, Orthodox fascists, National-Bolsheviks, and the like. Arming these bandits with first-class weapons is simply criminal. It is a good thing that Poland’s current government has taken an honest and judicious stance—it’s not flexing its muscles but it’s also not succumbing to illusions or hypocrisy.
By: Adam Michnik, Editor-in-Chief of Gazeta Wyborcza, where this piece originally appeared; The Huffington Post, July 21, 2014
“A Stroll Down Memory Lane”: Sometimes, ‘What Would Reagan Do?’ Is The Wrong Question
After the public learned last week that Malaysia Airlines Flight 17 had been shot down, killing all 298 people on board, it wasn’t long before an obvious comparison came to mind: in September 1983, a Russian fighter jet shot down Korean Air Lines Flight 007. The attack left 269 passengers and crew dead, 62 of whom were American, including a member of Congress.
Olivia Kittel noted that for many Republicans, President Obama should not only follow Ronald Reagan’s example from 31 years ago, but also that Obama is already falling short of the Reagan example.
In the wake of a Malaysia Airlines jetliner crash, Fox News has rushed to conveniently rewrite history to disparage President Obama by drawing false comparisons to former President Ronald Reagan’s response to a 1983 attack on a Korean airliner.
After Fox News said Obama wasn’t Reagan-esque enough, plenty of other conservatives soon followed.
Let’s take a brief stroll down memory lane in case some have forgotten what actually happened in 1983.
After the Soviet pilot killed 269 people on a civilian airliner, Reagan’s aides didn’t bother to wake him up to tell him what happened. When the president was eventually briefed on developments, Reagan, who was on vacation in California at the time, announced he did not intend to cut his trip short. (Reagan’s aides later convinced him to return to the White House.)
Last week, Obama delivered a public address on the Malaysia Airlines plane about 24 hours after it was shot down, calling the incident an “outrage of unspeakable proportions.” Reagan also delivered stern words, but in contrast, he waited four days to deliver public remarks.
So what is Fox talking about?
More from Kittel’s report:
On the July 17 edition of Fox News’ The Kelly File, host Megyn Kelly connected the July 17 tragedy to the 1983 Korean airliner crash, highlighting Reagan’s speech in response and noting in comparison that Obama has “been accused of ‘leading from behind.’ ” Fox contributor Chris Stirewalt compared Reagan’s response to Obama’s, saying Reagan’s response made Americans feel “reassured and resolute,” and Kelly echoed that Obama’s response “makes him look unconnected and makes a lot of Americans feel unrepresented.” […]
Such comparisons applauding Reagan’s 1983 response to attack Obama have reverberated throughout Fox News. Andrew Napolitano invoked Reagan’s response to insist Obama should “get on national television and call Vladimir Putin a killer.” Fox correspondent Peter Johnson Jr. said of Obama, “I think the president needs to take a page out of Ronald Reagan,” while Fox strategic analyst Ralph Peters suggested Obama’s strategy should reflect “clear speech, a la Ronald Reagan, backed up by firm action and with follow-through.”
This over-the-top Reagan worship isn’t just wrong; it’s ironic. In 1983, some of the prominent conservative media voices of the day actually complained bitterly that Reagan’s response was wholly inadequate.
George Will – yes, that George Will – called the Reagan White House’s arguments “pathetic” at the time, insisting, “It’s time for [Reagan] to act.”
The president responded publicly with rhetoric that made the president sound rather helpless. “Short of going to war, what would they have us do?” Reagan said. “I know that some of our critics have sounded off that somehow we haven’t exacted enough vengeance. Well, vengeance isn’t the name of the game in this.”
One wonders what the reaction would have been from the right and the Beltway media if Obama responded with similar rhetoric to a comparable situation.
By: Steve Benen, The Maddow Blog, July 21, 2014
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