“Republicans Are Gonna Be Really Mad!”: Boehner Sues Obama In Order To Implement Health Law Faster
When I learned that House Speaker John Boehner is suing President Barack Obama, I thought about a number of good reasons for something to limit executive actions. Would it be to limit NSA spying on its citizens? Could it have something to do with limiting IRS hazing of liberal and conservative groups (the Tea Party gets most of the attention, but the Congressional panel revealed that all new groups got special scrutiny)?
Would it end executive orders by the executive branch, or terminate signing statements, something done by Obama and George W. Bush (who did both with more frequency)? Might it require less immunity for advisers in the presidential administration?
Actually, it wouldn’t involve any of these good reasons for a lawsuit.
Instead, House Speaker Boehner wants to sue President Obama to implement the health care law, known as the Affordable Care Act (ACA), sooner.
Huh?
That’s right, Boehner claims that the Obama administration overstepped its legal bounds by delaying the employer mandate for a year. Businesses won’t be mandated to provide health care for their employees for a year.
What’s ironic is that House Republicans, when they weren’t voting to repeal the ACA, they also tried to vote for the exact same delay in the employer mandate.
So the lawsuit clearly isn’t about policy. It is about who has the power.
Boehner claims that the Obama administration shouldn’t have the power to write the law. But isn’t the executive branch allowed to implement the law? Is the timing part of writing a law, or implementing a law?
Actually, there’s a long history of delays in implementing the law, even about health care. And I don’t remember Boehner filing a lawsuit, or even objecting, when President George W. Bush delayed the implementation of his prescription drug law 10 years ago (passed by Congress, of course).
Boehner also claims that the White House has been abusing the executive actions, even though Obama has used the fewest executive actions since Grover Cleveland, according to the Washington Post. Granted, Boehner admitted that he thinks presidents should be allowed to use executive orders, but that the president has been abusing such authority with recess appointments.
If that term sounds familiar, it’s something President George W. Bush would use when making appointments that weren’t approved by Congress. Nobody remembers Boehner suing Bush over these, or even objecting to them.
When making his case for the lawsuit in his op-ed in a CNN article, Boehner didn’t say anything about implementing the health care law sooner, or even that he supported some recess appointments made by Obama’s predecessor. Instead, he cited Senate Democrats and President Obama refusing to pass House Republican jobs bills.
I don’t remember that being unconstitutional.
When Republican voters realize that the lawsuit has nothing to do with illegal immigration, the IRS, the NSA and spying, or repealing the health care law, but making the mandates occur faster, how will they react? I foresee a lot of disappointment in GOP ranks when they read the lawsuit.
By: John A. Tures, Professor of Political Science at LaGrange College in LaGrange, Ga: The Huffington Post Blog, July 27, 2014
“Paul Ryan’s Glossy New Poverty Plan”: Not Much Doubt What The Effect On Poor People Will Be
Every year or so Paul Ryan comes up with a glossy new plan to deal with poverty or spending on social programs. The plans never go anywhere, but they’re not really intended to: They’re designed to make the Republican Party (and Mr. Ryan himself) appear more thoughtful than it actually is on these subjects.
The one he released today is somewhat better than previous efforts, in that it doesn’t propose massive cuts in overall spending (unlike his House budgets), and would even increase the Earned Income Tax Credit, one of the government’s most successful anti-poverty programs. Democrats have also embraced a larger credit, although unlike Mr. Ryan, they would pay for it by raising taxes on the rich rather than slashing federal nutrition programs that Mr. Ryan thinks are a waste of money.
But the lack of seriousness in the plan is demonstrated by its supposedly big idea: It would combine 11 of the most important federal poverty programs into something called an “opportunity grant” that would be given to the states to spend as they see fit. The eliminated programs would include food stamps, what remains of the welfare system (known as Temporary Assistance to Needy Families), Section 8 housing vouchers, and low-income heating assistance, among others.
This technique should sound familiar. Members of Mr. Ryan’s party have spent years promoting the idea that states can do things better than Washington. As Rick Santorum repeated endlessly in 2012, “Cap it, cut it, freeze it, and block-grant it to the states.” Mr. Ryan’s running mate that year, Mitt Romney, would have turned all of Medicaid into a block grant system dumped onto the steps of 50 state capitols.
Putting programs like food stamps into a block grant means they could not be expanded on a national basis during economic emergencies, when unemployment or poverty soars. If a state were to have a budget crisis, perhaps due to tax cuts, social spending would be the first to go.
The broader problem is the sharp division between the states, which exposes the gap between Mr. Ryan’s attempt at high-mindedness and the petty grievances of the Republican majority. The proponents of these consolidation ideas know that while blue states would shoulder their responsibilities and protect their poorest residents, many red states would not. If Washington were not in the anti-poverty business, Republicans would have an opportunity to reduce spending on social programs in about half the country.
The attitude of red states toward social spending has been made brutally clear by their reaction to the Affordable Care Act. In 36 states, lawmakers refused to set up health care exchanges, putting the insurance subsidies for poor people at risk if a recent court decision is upheld. And only 27 states, including the District of Columbia, have agreed to expand their Medicaid programs. The effect on lowering the number of uninsured people in states with expanded programs is clear, but lawmakers elsewhere don’t care.
In Florida, the Republicans who rule the state have not created exchanges or expanded Medicaid, and have offered nothing to the 760,000 state residents with no insurance. The state has even banned volunteers who were helping poor people sign up for the federal exchange. The president of the Florida Senate, Don Gaetz, summed up the prevailing attitude perfectly this week: “As long as I serve in the Senate, I will never support the state of Florida serving as the instrument by which individuals and businesses are forced into a federal mandate to purchase a health insurance product they may not want.”
Mr. Ryan would never say so, but the real effect of his plan is to turn over a series of highly successful federal poverty programs into the hands of Don Gaetz and other anti-government ideologues. There’s not much doubt what the effect on poor people would be.
By: David Firestone, Taking Note, The Editorial Page Editors Blog; The New York Times, July 24, 2014
“A Collective GOP Orgasm”: Today’s Conservative Obamacare Baloney Debunked
If you were perusing the conservative twitter-sphere this morning, you would have witnessed a kind of collective orgasm, as it was discovered that back in 2012, MIT economist Jonathan Gruber gave a talk to a small group in which he seemed to support the analysis of the two judges on the D.C. Circuit who ruled this week in Halbig v. Burwell that the subsidies for buying health insurance under the Affordable Care Act should go only to people who live in states that set up their own insurance exchanges. Since Gruber advised Mitt Romney on the creation of Massachusetts’ health reform (which became the model for the ACA) and then advised the White House and Congress during the preparation of the ACA reform, conservatives are now convinced they have their smoking gun: The law, they contend, was always designed to deprive millions of Americans of subsidies, and was in fact never meant to achieve that “universal coverage” that everyone involved said was its goal.
Up to the point where the Supreme Court rules on Halbig, those conservatives will be citing Gruber’s 2012 comments. A lot. But the idea that something Gruber said in response to a question in front of what looks to be around 20 people is more relevant than literally everything else that happened during the drafting and debate over this law’s passage is, to put it plainly, insane.
Let me provide a partial list of people who spent over a year between the beginning of the debate over health-care reform and the passage of the law talking about the ACA, but never mentioned what was supposedly the intent of Congress that people in states using the federal exchange would be deprived of subsidies:
- Barack Obama
- Kathleen Sebelius
- Harry Reid
- Every other Democratic senator
- Nancy Pelosi
- Every other Democratic House member
- Every health-care analyst in America
- Every health-care reporter in America
- Every Republican in the Senate
- Every Republican in the House
- Every conservative opponent of the law
Ezra Klein, who wrote as much about health-care reform during this period as anyone, tweeted this morning that he interviewed Gruber dozens of times, and not only did Gruber never mention this issue, “[t]he same is true for literally everyone else I interviewed. I never heard a single person say subsidies don’t work in federal exchanges.”
As for Gruber himself, this morning he spoke to Jonathan Cohn, and here’s what he told him:
I honestly don’t remember why I said that. I was speaking off-the-cuff. It was just a mistake. People make mistakes. Congress made a mistake drafting the law and I made a mistake talking about it.
During this era, at this time, the federal government was trying to encourage as many states as possible to set up their exchanges. …
At this time, there was also substantial uncertainty about whether the federal backstop would be ready on time for 2014. I might have been thinking that if the federal backstop wasn’t ready by 2014, and states hadn’t set up their own exchange, there was a risk that citizens couldn’t get the tax credits right away. …
But there was never any intention to literally withhold money, to withhold tax credits, from the states that didn’t take that step. That’s clear in the intent of the law and if you talk to anybody who worked on the law. My subsequent statement was just a speak-o—you know, like a typo.
There are few people who worked as closely with Obama administration and Congress as I did, and at no point was it ever even implied that there’d be differential tax credits based on whether the states set up their own exchange. And that was the basis of all the modeling I did, and that was the basis of any sensible analysis of this law that’s been done by any expert, left and right.
I didn’t assume every state would set up its own exchanges but I assumed that subsidies would be available in every state. It was never contemplated by anybody who modeled or worked on this law that availability of subsidies would be conditional of who ran the exchanges.
Cohn, too, says he never spoke to anyone who mentioned this before the Halbig lawsuit. If this was actually what Congress thought the law would do, then liberals would have been freaking out about this provision for years, because it would mean that millions of people wouldn’t be able to get coverage. And conservatives would have been crowing about it for years, for the same reason. But nobody on either side was, because it was never part of Congress’s intent. It was a mistake, and one contradicted by multiple other provisions in the law.
I have no doubt that when the Halbig case is re-argued before the full D.C. Circuit, either the plaintiffs’ attorneys or one of the conservative judges will bring up Gruber’s 2012 comments. Let’s just hope it gets shot down like the baloney it is.
By: Paul Waldman, Contributing Editor, The American Prospect, July 25, 2014
“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
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