“Absurdity Of The Argument Is It’s Greatest Strength”: Republicans Know Their Obamacare Case Is Bogus; Here’s The Proof
On Thursday, the government filed its brief to the Supreme Court in the case that will determine whether Obamacare subsidies disappear in three dozen states. Its argument is comprehensive, but one part of it speaks directly to the political history of the law, and the fact that everybody, including Republicans in Congress who now claim out of convenience that the law plainly limits subsidies to states that set up their own exchanges, always understood it to authorize subsidies everywhere.
The government confines this part of its argument to the legislative debate in the run up to the law’s passage in early 2010, but it could make the point more succinctly (and perhaps convincingly) by fast forwarding to early 2011. These days, Republicans up to and including Senate Majority Leader Mitch McConnell confidently pronounce that “the language of the law says … subsidies are only available for states that set up state exchanges.” But that’s not what they believed four years ago.
When Republicans took over the House in 2011, the political environment in Congress changed dramatically. Obamacare couldn’t be repealed, but it became fair game for damaging modifications, and the GOP took aim at it and other domestic spending programs whenever opportunities to offset the cost of new legislation arose. One of the first things Congress did back then was eliminate an Affordable Care Act provision that would have significantly expanded the number of expenses businesses are required to report to the IRS. Even before the law passed, business associations were livid about the “1099” requirement, and created such an uproar over it that the question quickly became how, not if, it would be repealed. Even Democrats wanted it gone.
The only problem was that the reporting requirement was expected to raise over $20 billion. Under GOP rule, it could only be offset with spending cuts elsewhere in the budget. As it happens, they found those spending cuts elsewhere in the ACA itself. Specifically, Republicans paid for repealing the 1099 provision by subjecting ACA beneficiaries to stricter rules regarding when they have to reimburse the government for subsidy overpayments. Make more money than you anticipated, and the government will claw back your premium assistance come tax season.
The congressional budget office scored the plan as essentially deficit neutral, and Republicans voted for it overwhelmingly. But you see the problem here. If the ACA plainly prohibits subsidies in states that didn’t set up their own exchanges, then there would be no subsidies in those states to claw back. And by April 2011, when the clawback passed, we already knew that multiple states were planning to protest ACA implementation and let the federal government set up their exchanges, including giant states like Florida, which now has a million beneficiaries. They would have needed a different, or additional, pay-for.
Obamacare’s legal challengers might chime in here to insist that their case is impervious to revelations like these. CBO’s analyses were premised on the idea that every state would set up its own exchange, and Republicans (and many Democrats) based their votes on what CBO told them. Other Democrats who actually understood the scheme may have simply pretended not to notice the problem. Nevertheless, they’d say, the law was designed to withhold subsidies from people whose states didn’t establish exchanges, and to ruin the individual and small-group insurance markets in those states, without providing any notice to either. In a perverse way, the absurdity of the challengers’ argument is it’s greatest strength. Because the scheme they insist Congress intentionally created was so far from Congress’ mind, it’s hard to find contemporaneous evidence that Congress absolutely didn’t mean to condition these subsidies. In much the same way, we can’t be sure that Congress didn’t mean to denominate those subsidies in Canadian dollars. A $ isn’t necessarily a $ after all.
But this familiar line of defense crumbles here. It is facially plausible—though incorrect—to posit that at the time the law passed, CBO believed subsidies would be available everywhere because it simply assumed every state would set up an exchange. But that assumption didn’t hold in April 2011. Something else must explain CBO’s 1099-repeal score, and the Republican votes that followed it. What we have in the form of this bill is clear evidence that everyone who voted for it (including every single Republican, save the two GOP congressmen and one GOP senator who weren’t present) understood the Affordable Care Act to provide subsidies everywhere.
Congress repealed the 1099 provision at an important moment—after multiple states announced that they would step back and let the federal government establish their exchanges, but before the IRS issued its proposed rule stipulating that subsidies would be available on both exchanges. The only thing Congress had to go on when it stiffened the clawback mechanism was its own reading of the Affordable Care Act, and Congress behaved exactly as you would expect. It operated with the understanding that subsidies were universal.
Today, many Republicans will tell you that the law plainly forecloses subsidies through the federal exchange. Six senators—John Cornyn, Ted Cruz, Orrin Hatch, Mike Lee, Rob Portman, and Marco Rubio—and nine congressmen—Marsha Blackburn, Dave Camp, Randy Hultgren, Darrell Issa, Pete Olson, Joe Pitts, Pete Roskam, Paul Ryan and Fred Upton—have even filed an amicus brief with the Supreme Court, which begins, “The plain text of the ACA reflects a specific choice by Congress to make health insurance premium subsidies available only to those who purchase insurance from ‘an Exchange established by the State….’ The IRS flouted this unambiguous statutory limitation, promulgating regulations that make subsidies available for insurance purchased not only through exchanges established by the States but also through exchanges established by the federal government.”
All of them, save Cruz, who was elected in 2012, voted for 1099 repeal.
In its brief, the government argues that “it was well understood that the Act gave ‘States the choice to participate in the exchanges themselves or, if they do not choose to do so, to allow the Federal Government to set up the exchanges.’ And it was abundantly clear that some States would not establish their own Exchanges.“ It was more than well understood. Congress actually endorsed that very proposition.
By: Brian Beutler, The New Republic, January 23, 2015
“There Are Things In It That Scare Me”: For Republicans, Dishonesty Works And Deceit Instills Fear And Uncertainty
There isn’t a democracy on the planet in which even conservative candidates take aim at citizens’ access to health care. At a certain level, the very idea seems a little silly – a national candidate would presumably fail if he or she told their electorate, “Vote for me and I promise to leave some of you behind without access to basic medical care.”
But the United States is the exception. The Republican Party is the only major party in any major democracy that believes citizens are not entitled to medical care as a benefit of citizenship. Louisiana Gov. Bobby Jindal (R), as we discussed yesterday, want the GOP to abandon universal coverage as a worthwhile goal.
The Affordable Care Act may have extended new health security to tens of millions of families, but Jindal and Republicans believe voters should elect them to deliberately take that security away.
In theory, this should be a very tough sell. Why in the world would any Americans consider voting, on purpose, for a platform that could deliberately punish their own family?
The answer, I suspect, has a lot to do with the power of fear.
The New York Times recently published a fascinating piece on Kentucky’s triumphs in implementing the Affordable Care Act, and the article highlighted a woman named Amanda Mayhew. On paper, the piece presents Mayhew as a classic example of an “Obamacare” success story: thanks to the ACA, she been able to receive free, overdue dental care; she was able to see a dermatologist for free; and she received medication to treat depression for free. This one law has made a big, positive difference in her life.
And then came the twist.
“I don’t love Obamacare,” she said. “There are things in it that scare me and that I don’t agree with.”
For example, she said, she heard from news programs that the Affordable Care Act prohibited lifesaving care for elderly people with cancer.
Mayhew went on to tell the NYT that she’s “thankful” for her coverage, she would “gladly give up my insurance today if it meant that some of the things that are in the law were not in place.”
The problem, of course, is that Mayhew has been misled. Despite what she “heard from news programs,” the Affordable Care Act does not prohibit lifesaving care for elderly people with cancer. It actually does the opposite – which is why the law has received the enthusiastic support of the American Cancer Society and AARP.
The Times article featured a well-intentioned woman, whose heart clearly seems to be in the right place, who would sacrifice her own access to medical care in order to scrap provisions in the law that do not actually exist.
And that’s where Republican rhetoric comes into play. For years, the naive among us – a group that I include myself in – have marveled at the extraordinary lies that have been told about the Affordable Care Act. Why, we ask, would the right lie so brazenly to families who urgently need access to doctors and medicine?
Because dishonesty works. Deceit instills fear and uncertainty.
When Republican candidates vow to gut the American health care system and take Americans’ coverage away, there are plenty of voters who are willing to go along because they’re eager to undo those horrible provisions in the law they “heard about” on “news programs.”
The power of deceptive propaganda, backed by billionaires and their powerful elected allies, shouldn’t be underestimated.
The Kaiser Family Foundation recently found that 41% of the country still, even now, believes “a government panel” exists to “make decisions about end-of-life care for people on Medicare.” That’s two out of every five Americans who believe a ridiculous falsehood.
It’s not that these people are bad or dumb. It’s not that they want their neighbors or community to suffer. The issue here is that some wealthy and sophisticated folks launched a con job on the public, and the scam roped in a lot of victims.
Why else would politicians run on a platform of pushing millions of Americans into a position where they’re one ailment away from bankruptcy? It’s because they think they can get away with it – nice, generous folks will sacrifice their own security to prevent imaginary threats from hurting someone else.
By: Steve Benen, The Maddow Blog, January 13, 2015
“Playtime Is Over For Obamacare’s Foes”: And Still, Republicans Don’t Have A Serious Plan B
Friends of Obamacare, horrified that the Supreme Court has taken a case that could blow up the federal health insurance exchanges, should recalibrate their dread. While the health reforms were safely humming along, there was little political price for demanding their demise. Thanks to the Supreme Court, now there is.
Years of carpet-bombing assaults on Obamacare have left many Americans thinking that they don’t like the Affordable Care Act. But close down the federal exchanges covering 6 million people (so far) in 36 states and they may think otherwise. With a vengeance.
Here are the stakes in King v. Burwell: Should the justices strike down subsidies for coverage in the federal exchanges, only the very sick would hang in. That would be the end of the federal exchanges.
Donald Taylor, a health policy expert at Duke University, likens the Obamacare attackers to a dog chasing a car. “What’s the dog going to do if it catches the car?” he said to me.
Subsidies would be untouched in the 12 or 14 state-run exchanges (depends on how you define them), the majority of which are in blue states. Red-state politicians — oddly the biggest foes of a law that in effect transfers tax dollars from high-income liberal states to poor conservative ones — would have a mess on their hands.
“Some Southern states will be back up to 20 percent uninsured,” Taylor said, “and that doesn’t sound politically stable.”
The solution for Republicans would be a plan B. But they don’t have a serious plan B.
Republicans do have a proposal of sorts, composed early last year by three senators — Richard Burr of North Carolina, Orrin Hatch of Utah and now-retired Tom Coburn of Oklahoma. But it was written mainly as a political document with which to hit Obamacare over the head during the 2016 campaign — not as a ready-to-plug-in substitute.
Let’s look at the Republican plan that we aren’t supposed to examine too closely.
For starters, it would empower private insurers to play a bigger role in the relationship between you and your doctor — encouraging them to shrink the network of doctors and hospitals you may visit. So much for “choice.”
It also would cut government subsidies for many working stiffs who earn too much to claim poverty but too little to afford decent private coverage. And it would enable insurers to charge older people far more for their insurance. Obamacare lets them charge three times as much. The Republican plan would let them charge five times as much.
Gone would be the minimal coverage standards. That means the insurers could more easily deny payment for services that Obamacare considers basic. For all these gifts to private insurers, the industry actually prefers Obamacare because its subsidies create many more customers for their products.
The Republican replacement plan (as written so far) contains lots of other controversial elements pretty much ignored because few have taken it seriously. For example, it would tax employer-sponsored health benefits. (Obamacare’s “Cadillac tax” on luxurious coverage does some of that, for which it continues to take a beating.)
A group of conservative economists, led by Douglas Holtz-Eakin, has scored the Burr-Hatch-Coburn plan and claims that it would cut deficits by $1 trillion. These are reputable economists, Taylor says, but the text they were working with was “incredibly vague” on where the cap on the taxes would be put.
“The score is a number, and the text on which they did the score was ambiguous,” he said. “It shows just how hard this is.”
So now Obamacare won’t be the only piñata in town.
The Supreme Court will take up King v. Burwell in March. We do live in interesting times.
By: Froma Harrop, The National Memo, January 8, 2015
“America, We’re In Big Trouble!”: A ‘Governing Majority’ That Doesn’t Know How To Govern
Incoming Senate Majority Leader Mitch McConnell (R-Ky.) said the other day that he hopes the Republican-led Congress can prove to the electorate that his party can be a responsible “governing majority.” And on the surface, that’s a perfectly worthwhile goal.
But it’s been quite a few years since GOP policymakers actually tried to govern effectively, and there’s reason to believe the party no longer remembers how. This week, for example, Republican lawmakers will get right to work, pushing the Keystone oil pipeline and a measure to redefine a full-time worker under the Affordable Care Act. Jonathan Weisman had a good piece on the latter.
The House will take up legislation on Wednesday, the first major bill of the 114th Congress, that would change the definition of a full-time worker under the health law from one who works 30 hours a week to one who works 40 hours. A vote is scheduled for Thursday.
Weisman’s report did a nice job noting that even conservatives seem to realize this is a bad idea, with National Review’s Yuval Levin arguing over the weekend that the legislation “seems likely to be worse than doing nothing.”
Republicans, at some level, must understand this. Indeed, they pushed this exact same idea 11 months ago – in a bill they called the “Save American Workers Act” – and it was deemed ridiculous at the time.
An analysis of the bill, released Tuesday by the nonpartisan Congressional Budget Office and Joint Committee on Taxation, found that it would cause 1 million people to lose their employer-based insurance coverage. The report projected that more than 500,000 of them would end up getting coverage through Medicaid, the Children’s Health Care Program or the Obamacare exchanges. The rest, CBO and JCT said, would become uninsured.
The legislation would also lower the amount the federal government collects in penalties from businesses who don’t abide by the employer mandate. As a result, the report found, the deficit would go up by $74 billion over 10 years.
Jonathan Cohn explained a while back, “The Congressional Budget Office just taught the Republican Party a lesson. Governing is hard…. [T]hat’s the reality Obamacare’s critics are never willing to confront. They’re great at attacking Obamacare. But they’re lousy at coming up with alternatives that look better by comparison. There’s a reason for that. The downsides of Obamacare are real, but, in many cases, they make possible the upsides. Take away the former and the latter go away, too.”
Faced with this knowledge, the new, massive House Republican majority has effectively declared, “Well, let’s just pass it anyway.”
And what about Keystone? I’ll dig into this in more detail when the vote draws closer, but for now, I’m reminded of President Obama’s comments at his year-end press conference a few weeks ago:
“At issue in Keystone is not American oil. It is Canadian oil that is drawn out of tar sands in Canada. That oil currently is being shipped out through rail or trucks, and it would save Canadian oil companies and the Canadian oil industry an enormous amount of money if they could simply pipe it all the way through the United States down to the Gulf. Once that oil gets to the Gulf, it is then entering into the world market, and it would be sold all around the world.
“So there’s no – I won’t say ‘no’ – there is very little impact, nominal impact, on U.S. gas prices – what the average American consumer cares about – by having this pipeline come through. And sometimes the way this gets sold is, ‘Let’s get this oil and it’s going to come here.’ And the implication is, is that’s going to lower gas prices here in the United States. It’s not. There’s a global oil market. It’s very good for Canadian oil companies and it’s good for the Canadian oil industry, but it’s not going to be a huge benefit to U.S. consumers. It’s not even going to be a nominal benefit to U.S. consumers.
“Now, the construction of the pipeline itself will create probably a couple thousand jobs. Those are temporary jobs until the construction actually happens. There’s probably some additional jobs that can be created in the refining process down in the Gulf. Those aren’t completely insignificant – it’s just like any other project. But when you consider what we could be doing if we were rebuilding our roads and bridges around the country – something that Congress could authorize – we could probably create hundreds of thousands of jobs, or a million jobs. So if that’s the argument, there are a lot more direct ways to create well-paying Americans construction jobs.”
Again, the Republican Congress knows all of this. They know gas prices have already plummeted and that Keystone won’t push them any lower. They know that the project would create a few dozen permanent U.S. jobs. They know this is all about Canadian oil.
But this new “governing majority,” eager to prove how capable they are, have once again effectively declared, “Let’s pass it anyway” – whether it actually makes sense or not.
Republican lawmakers have had months – and by some measures, years – to come up with a policy agenda they’d implement once they controlled all of Congress. This, alas, is what they’ve come up with.
By: Steve Benen, The Maddow Blog, January 6, 2014
“Conservative GOP Governors Are Accepting Obamacare”: Wagging A Finger With One Hand, Holding Out The Other Hand For The Money
Many GOP governors who loudly condemned Obamacare are secretly signing up for the Affordable Care Act’s Medicaid Expansion. And they aren’t just Republicans in Democrat states. A growing number are from Southern conservative states, like Alabama and Tennessee.
Tennessee Governor Bill Haslam announced his state would oppose Obamacare, saying that he would rather have any money sent to his state go to private insurance, according to Bill Barrow with the Associated Press. But after getting reelected, Haslam announced that he had struck a deal that would allow that Medicaid expansion, according to Dave Boucher with The Tennessean.
Ditto Alabama Governor Robert Bentley, who once claimed that “the anything but Affordable Care Act has done nothing to gain our trust,” according to Tom Baxter with Saporta Report. But there was Bentley, after getting easily reelected, claiming “he could support the expansion in the form of a block grant, with a lot of strings attached,” Baxter writes.
In other red states, Republicans are doing the same, wagging a finger at Obamacare with one hand and holding out the other hand for the money. Kansas Governor Sam Brownback condemned GOP Governors for taking the Medicaid expansion money, as noted on his own website. But then, buffeted by a deficit from ill-advised tax cuts, Brownback took the money, calling it something else, in order to balance the budget, according to Salon.
It is unlikely that Representative Mike Pence cast many votes in favor of Obamacare while in Congress. But as Indiana Governor, he’s signed on to the Medicaid expansion, according to Dana Milbank from the Washington Post.
Arizona Gov. Jan Brewer joined her name to the lawsuits challenging the constitutionality of Obamacare. But then, she signed up for the dollars from Washington, DC after dodging a primary challenge, as reported by CBS.
Florida Governor Rick Scott, another Republican, had few kind words for Obama or the ACA. But once it was clear that he wouldn’t face a primary challenger, Scott took the money, according to the Miami Herald, hoping to boost his reelection chances. He was able to hold onto the Governor’s Mansion in Tallahassee as a result.
And it was Ohio Governor John Kasich who called for repealing Obamacare, well, at least most of it. Now he’s saying it is here to stay, as noted by CNN, and other Republicans better get used to it being around.
Michael Hiltzik with the Los Angeles Times is reporting that even Texas is considering the Medicaid expansion, modeled after Utah’s acceptance of the ACA plan.
There are a few reasons for this. While the House of Representatives and Senate can pass repeal after repeal votes, governors have to balance budgets. Also, many of these governors talk the conservative talk to beat back or forestall Tea Party primary challengers. Given that only a dwindling number of these are succeeding, there’s no need to kowtow to this group after reelection. They can use some creative accounting to accept the money, or call it something else so it will have a lower profile (Alabama could call it Bamacare, for example).
Of course, this is bound to infuriate the most conservative members of the Republican Party, but only if they are paying attention. Besides, this is still the party of Jeb Bush, who was linked to a firm that benefited from Obamacare, as reported by The Daily Mail. It’s also the party of Mitt Romney, whose Romneycare had many similarities to Obamacare, according to health expert Brad Burd.
By: John A. Tures, Professor of Political Science at LaGrange College in LaGrange, Ga; The Blog, The Huffington Post, December 31, 2014
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