“Creating Two Different Nations”: The Deepening Divide Between Red And Blue America
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
“A Conservative Judiciary Run Amok”: Using Judicial Sophistry As An Instrument Of Anti-Democratic Sabotage
Retired Supreme Court Justice John Paul Stevens captured our ideal when he wrote of the judge as “an impartial guardian of the rule of law.”
By effectively gutting the Affordable Care Act on Tuesday, two members of a three-judge panel on the D.C. Circuit Court of Appeals showed how far right-leaning jurists have strayed from such impartiality. We are confronted with a conservative judiciary that will use any argument it can muster to win ideological victories that elude their side in the elected branches of our government.
Fortunately, the D.C. Circuit ruling is unlikely to stand. On the same day the D.C. panel issued its opinion, a three-judge panel from the 4th Circuit ruled unanimously the other way, upholding the law.
There is a good chance that the 11-judge D.C. Circuit will take the decision away from its panel — something it is usually reluctant to do — and rule as a full court to affirm the ACA as commonly understood. It is virtually certain that a majority of the court’s members disagrees with the panel’s convoluted reading of the law and wants to avoid creating a needless conflict in jurisprudence with the 4th Circuit.
When Congress wrote the health law, it envisioned that the states would set up the insurance exchanges where individuals could purchase coverage. But knowing that some states might not want to set up these marketplaces themselves, it also created a federal exchange for those that bowed out. There are 36 states under the federal exchange.
The law includes a mandate requiring Americans to buy health insurance and subsidizes those who need help to pay their premiums. The law falls apart without the subsidies, which go to its central purpose: providing insurance for those who cannot afford it.
But the law was not particularly well-drafted. It’s not uniquely flawed in this respect. As Judge Andre M. Davis wrote in a concurrence to the 4th Circuit ruling: “Neither the canons of construction nor any empirical analysis suggests that congressional drafting is a perfectly harmonious, symmetrical and elegant endeavor. . . . Sausage-makers are indeed offended when their craft is linked to legislating.”
Here’s what the two Republican-appointed judges on the D.C. panel did to make the sausage disappear entirely: Because the subsidies are established in a part of the law referring to state exchanges, the D.C. Circuit ruled that no one on the federal exchange is eligible for them.
Poof! There goes the health law in most of the country.
Never mind that many other parts of the law clearly assume that the subsidies apply to people on both the state and federal exchanges. And never mind that during the very long debate over the ACA, no one ever said otherwise.
In ruling to kill the subsidies for an estimated 5 million people on the federal exchange, Judge Thomas B. Griffith invents the idea that Congress may have intended to deny subsidies to people in states that didn’t set up their own exchanges as an incentive for those states to do so. But as Judge Harry T. Edwards writes in his dissent, the “incentive story is a fiction, a post hoc narrative” to justify the idea that “Congress would have wanted insurance markets to collapse in states that elected not to create their own exchanges.”
The extreme judicial activism here is obvious when you consider, as the 4th Circuit did, that even if you accept that there is ambiguity in the law, the Supreme Court’s 30-year-old precedent in Chevron v. Natural Resources Defense Council held that in instances of uncertainty, the court defers to federal agencies rather than concocting textual clarity when it doesn’t exist.
Griffith has to pretend that his cramped reading of the written text — again, a reading utterly disconnected from the reality of the law’s history — is the only one possible. From there, he goes on to force the government and those losing their subsidies to live with a patently absurd result.
Edwards’s logic is compelling: The Griffith decision “defies the will of Congress” and goes along with a “not-so-veiled attempt to gut the Patient Protection and Affordable Care Act.”
As the 4th Circuit’s Davis put it, the law’s opponents are trying “to deny to millions of Americans desperately needed health insurance through a tortured, nonsensical construction” of the law.
We cannot use judicial sophistry as an instrument of anti-democratic sabotage.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, July 23, 2014
“A Partisan Axe To Grind”: An ‘Unfortunate Political Stunt’ Goes Awry
Earlier this year, Sen. Ron Johnson (R-Wis.) thought he’d come up with a great idea: he’d file a lawsuit against the Affordable Care Act in the hopes of making coverage more expensive for Capitol Hill staff. Rep. Jim Sensenbrenner, a Republican from Johnson’s home state of Wisconsin, conceded the senator’s lawsuit was “frivolous” and an “unfortunate political stunt.”
Yesterday, in a development that was arguably even more important than it appears at first blush, a federal judge threw out the case.
A federal judge based in Green Bay has tossed a Sen. Ron Johnson’s Obamacare lawsuit targeting the health benefits for members of Congress and their staff.
The court dismissed the lawsuit, which contended the Obama administrations decision to grant employer contributions for health plans purchased through the District of Columbia’s Obamacare health exchange ran afoul of the law.
Chief Judge William C. Griesbach of the Eastern District of Wisconsin ruled that Johnson and fellow plaintiff Brooke Ericson lacked standing, siding with the argument made by the government’s lawyers.
The hurdle for Johnson’s lawyers was always going to be difficult to clear: how would the Republican senator demonstrate he’d been harmed by the health care policy he doesn’t like? Remember, when filing a lawsuit challenging the legality of a law, plaintiffs can’t just say, “I don’t like it.” They need to show how they’ve been adversely affected by it.
Johnson couldn’t, so his case was dismissed. But this is more than just a setback for one Republican senator with a partisan axe to grind; this is also likely the start of things to come for the GOP’s anti-Obama litigation.
Let’s not forget that in April, Johnson not only had high hopes for his case, he also had the enthusiastic support of his Republican colleagues. As we talked about at the time, 38 GOP senators signed onto a legal brief, urging the courts to rule in Johnson’s favor.
As these lawmakers saw it, they were fighting for the preservation of the republic. “The unlawful executive action at issue in this case is not an isolated incident,” the brief said. “Rather, it is part of an ongoing campaign by the executive branch to rewrite the Affordable Care Act on a wholesale basis.”
The courts must side with Johnson, the GOP lawmakers’ brief added, because the administration’s campaign “threatens to subvert the most basic precept of our system of government.”
It was, to be sure, a dumb and overdramatic argument. But more important, it also failed miserably – a federal judge ruled late yesterday that without standing to argue the case, far-right lawmakers will have to pursue their preservation of the republic in some other way.
One wonders if House Speaker John Boehner (R-Ohio) took note of the developments.
As for the underlying policy issue, a little background is probably in order. Johnson argued that Democrats came up with a congressional subsidy in the ACA “once members realized how harmful Obamacare actually was.” That was brazenly false.
In reality, the law includes a provision that says members of Congress and their staffs have to sign up for coverage through an exchange. This became tricky because the exchange marketplaces were designed primarily for the uninsured, but Republicans said they wanted this in the law, so it’s in there.
But the story got a little more complicated when the Office of Personnel Management had to decide whether lawmakers and their staffs should also receive the same employer subsidy as everyone else, or whether everyone on Capitol Hill should face higher costs just because they work on Capitol Hill. OPM, with the blessing of the House Republican leadership, said lawmakers and aides can keep the same employer subsidy and play by the same rules as everyone else.
And that’s why Johnson sued – he wanted Capitol Hill employees to pay more for health care because it would make the right feel better. As of yesterday, the argument is a bust.
By: Steve Benen, The Maddow Blog, July 22, 2014
“Judicial Neutrality Is Nothing But A Farce”: The Latest ObamaCare Decision Makes It Official, We Need More Liberal Judges
After the passage of ObamaCare in 2010, dozens of conservative wonks, activists, and lawyers began poring over the text of the law, trying to find some legal foothold to overthrow as much of it as possible. First they argued that the law’s individual mandate was unconstitutional in NFIB vs. Sebelius, which was rejected by the Supreme Court in 2012. However, the decision weakened the law by making its expansion of Medicaid optional, which led most conservative states to reject it and deny coverage to millions of poorer Americans.
Then, in Burwell vs. Hobby Lobby, conservatives attacked the scope of the law’s mandated coverage, arguing that the inclusion of certain kinds of contraception violated the Religious Freedom Restoration Act. That one they basically won, though the damage was minimal.
You’ll know these efforts by what conservatives usually call them: “judicial activism.” It paid off again today, with a three-member panel of the U.S. Court of Appeals for the District of Columbia Circuit dealing a sharp blow to ObamaCare’s subsidy system. Adrianna McIntyre explains:
The suit alleges that subsidies should only be available in states that set up their own insurance exchanges, based on the text of the Affordable Care Act. The government can still appeal, but if it ultimately loses the case at the Supreme Court, it’s possible that federal subsidies will no longer be available to help make insurance affordable in over 30 states.
Due to what appears to many outside observers to have been poorly crafted legislative language, Congress arguably wrote a sentence that provides subsidies exclusively to state-based exchanges and not to federally facilitated ones, even while subjectively intending to provide subsidies in both cases. [Vox]
Now, Halbig v. Burwell is only a preliminary ruling. The government probably will request an “en banc” ruling before the entire appellate court, which leans to the left — thanks to Majority Leader Harry Reid (D-Nev.) pushing through filibuster reform that filled its long-empty seats with President Obama’s appointees. What’s more, another ruling hours later by the Fourth Circuit Court of Appeals in Richmond, Virginia, upheld the ObamaCare subsidies, deferring to the government’s interpretation of the language to mean that it is authorized to dole out those subsidies. It’s possible this will all end up before the Supreme Court, increasingly America’s only policy-making body of consequence.
God only knows what the high court will decide. Thirty-six states did not create their own ObamaCare exchanges, which means that upholding Halbig would swipe the subsidies from something like 87 percent of people who bought insurance on the federal exchange — about 4.7 million of them. Premiums would shoot up by an average of 76 percent, basically crippling the law. An individual mandate is unjustifiable without subsidies for people who can’t afford insurance. Chief Justice John Roberts might balk at destroying the keystone achievement of the Obama presidency on what amounts to a trivial technicality — or he might not.
What we do know is that the concept of judicial “neutrality” is nothing but a farce. The conservative goal is to pick at any possible legal thread and mobilize the judicial system to achieve their aim of destroying the law and throwing millions of people off their health insurance, even if the underlying legal rationale is wildly tendentious or weaselly or undemocratic. There will be Republican-appointed judges who will buy such arguments wholesale, as evidenced by the conservative majority in Halbig, which didn’t even bother to hide their scorn for the government’s case.
Indeed, half the reason so many states don’t have exchanges in the first place is that a Cato Institute analyst named Michael Cannon has been crossing the nation telling them not to, with the deliberate object of maximizing the damage to ObamaCare if the courts endorsed Halbig-style reasoning.
Liberals need to jettison the impossible idea of neutral, objective judges, and just get avowed lefties appointed wherever possible. As conservatives have demonstrated, that’s simply how the system works.
By: Ryan Cooper, The Week, July 22, 2014
“Rick Perry’s Operation Strong Safety”: Creating A Talking Point For The Campaign Trail, Not Searching For A Practical Solution
Texas Gov. Rick Perry (R) recently appeared on Fox News, stressing his support for deploying National Guard troops to address the humanitarian crisis at the Southern border. Brit Hume asked the governor to explain what the Guard would actually do. Perry struggled to explain.
Hume reminded Perry, “[I]f these children who’ve undergone these harrowing journeys, to escape the most desperate conditions in their home countries, have gotten this far, are they really going to be deterred by the presence of troops along the border who won’t shoot them and can’t arrest them?”
At this point, Perry changed the subject.
But that was last week. This week, the Republican governor and likely presidential candidate is moving forward with his idea, whether he can explain its merits or not.
Republican Gov. Rick Perry on Monday requested the immediate deployment of as many as 1,000 service members to assist with security at the U.S.-Mexico border.
The soldiers, from both the Texas National Guard and State Guard, will mobilize throughout the next 30 days to carry out “Operation Strong Safety” along the border region.
“I will not stand idly by while our citizens are under assault,” Perry said Monday during a press conference.
First, there’s very little to suggest Texans are “under assault.” Second, “Operation Strong Safety” is an unintentionally amusing phrase. As Paul Waldman joked, “ ‘Operation Strong Safety’? Why not just go ahead and call it Operation America Macho TestosteReagan?”
But even putting that aside, at its core, the most meaningful concern here is that Perry’s solution doesn’t match the problem.
The obvious question in response to the announcement from the governor’s office is simple: what, exactly, does Perry expect the Guard to do?
Part of the rationale, he said yesterday, was to deter others from entering the United States illegally. Again, this is predicated on a mistaken assumption about the nature of the crisis itself. These unaccompanied children are not sneaking into the country – on the contrary, they’re walking up to law-enforcement officials and gladly turning themselves in.
There is no deterrent effect in having more law-enforcement personnel because the kids aren’t afraid of getting caught. They fully expect to be taken into custody; they want to be taken into custody. Does Perry not understand these details? If not, why not?
What’s more, Greg Sargent recently talked to the head of the National Guard under the Bush/Cheney administration, who offered a valuable perspective.
[I]n an interview today, the head of the National Guard under George W. Bush said he had not yet heard a clear rationale for sending in the Guard and suggested it might not be the appropriate response to the problems at the core of the current crisis, though he did say he could envision the Guard playing some sort of part in a broader solution.
“Until mission requirements are clearly defined, it can’t be determined whether this is an appropriate use of the Guard in this particular case,” H. Steven Blum, who was the Chief of the National Guard Bureau from 2003 to 2009 and has been a career military man for decades, told me. “There may be many other organizations that might more appropriately be called upon. If you’re talking about search and rescue, maintaining the rule of law or restoring conditions back to normal after a natural disaster or a catastrophe, the Guard is superbly suited to that. I’m not so sure that what we’re dealing with in scope and causation right now would make it the ideal choice.”
That still seems to be an exceedingly polite way of saying, “Republican demands don’t seem to make any sense.”
Of course, it’s possible Perry’s decision is less about making sense and more about presidential posturing in advance of a national campaign. Immigration was an albatross for the Texas governor in 2012 – remember the “have a heart” problem? – and the Republican is no doubt eager to chart a different course in advance of 2016. Dispatching the National Guard, in this sense, is about looking “tough” and creating a talking point for the campaign trail, not searching for a practical solution.
It led Rep. Lloyd Doggett (D-Texas) to say in a statement, “Once again, Texas taxpayers are being forced to pay for Governor Perry’s grandiose political ambitions. It is a costly misuse of our highly skilled National Guard to demand its service as a mere referral agent for children seeking refuge from abuse. Doing its job effectively, our Border Patrol does not need interference from either Governor Perry or vigilantes. We deserve Texas tough, but today we get only Texas Governor weak – weak on any bipartisan solutions, weak on any meaningful action.”
By: Steve Benen, The Maddow Blog, July 22, 2014
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