“Preposterous”: The Lethal Legal Threat To Obamacare That Could Land This Week And End It All
With all the headline grabbing going on over the SCOTUS Hobby Lobby decision, many pundits have not been paying much attention to another case set for a decision from the influential D.C. Court of Appeals as soon as this week—a decision that could, realistically, finish off Obamacare once and for all.
In Halbig v. Burwell, a challenge has been lodged by opponents of the Affordable Care Act who argue that the language of the law restricts government provided subsidies to state operated exchanges only—meaning that the premium subsidies being offered to qualified purchasers in the 34 states where the federal government is operating the healthcare exchanges, are illegal under the law.
The plaintiffs in the case explain their position as follows:
“The premium-assistance tax credit provisions of the PPACA clearly, consistently, and unambiguously authorize tax credits only in states that establish a health insurance “exchange” that complies with federal law. Specifically, Section 36B authorizes tax credits for the purchase of qualifying health insurance plans only in exchanges “established by a state under Section 1311…The IRS rule, by contrast, purports to authorize tax credits in Exchanges that are neither “established by the State” nor “established . . . under Section 1311.” This it cannot do. Because the language of the PPACA speaks directly to the question at issue, the IRS has no authority to provide tax credits in federal exchanges, nor is the IRS due deference in its interpretation of the Act.”
While it is generally agreed that the Congressional leaders who wrote the PPACA intended the premiums to be available via all health insurance exchanges—whether operated by the state itself, or the federal government in the instance of states not setting up their own exchanges—the plaintiff argues that the statutory language is clear and must be interpreted and enforced per the clear statement of the law.
If you think that those attempting to undo Obamacare are making a far-fetched argument—and a ruling from the Court of Appeals holding that the premium supports were only meant for state run exchanges would, in all likelihood, irrevocably tank the law—you are not alone.
Federal District Court Judge Paul Friedman held that the plaintiff’s claims were “unpersuasive” and that, since the federally run exchanges are created and operated on behalf of the states that chose not to do so, the federally operated exchanges were intended by Congress to be treated as state operated exchanges.
However, there are more than a few highly qualified legal experts who are not so sure that Judge Friedman got this right and believe that the result could be very different in the Court of Appeals.
Jonathan Turley—the widely respected constitutional law expert, television analyst and professor of law at George Washington University Law School—notes:
“Of all the challenges since the individual mandate, this is the one that presents the most mortal threat to the act. If this case were decided on the basis of the statutory language, the advantage goes to the challengers. If the court is willing to broaden its interpretation then the administration may have an edge. It depends entirely on how the panel structures its analysis.”
Put another way, the language pretty clearly says one thing even if the intent was something else.
So, should the D.C. Court of Appeals be willing to review the legislative history—and the Friend of the Court brief submitted and signed by the Congressional leaders responsible for drafting the law which purports to inform the Court of their actual intent—or give plain meaning to what the statute actually says?
As Sahil Kapur reports , two members of the three judge panel hearing the case appeared, in oral arguments, to have considerable sympathy for the anti-Obamacare point of view.
Points out Judge A. Raymond Randolph, appointed to his seat by President George H.W. Bush, “If the legislation is just stupid, I don’t see that it’s up to the court to save it. ” Meanwhile, Judge Thomas Griffith, a George W. Bush appointee, was a bit more reserved in his take on the case but did not fail to point out that there was a special burden on the Obama Administration (defending the action) to prove that the statutory language does not mean what it appears, on its face, to mean.
Only Democratic appointee, Judge Harry T. Edwards, took the position that the plaintiff’s claims were “preposterous”.
Should we get a decision in favor of the challenger here, Obamacare bashers might wish to withhold their enthusiasm as the Obama Administration will surely exercise its right to appeal the three judge panel’s ruling to the full D.C. Court of Appeals via an en banc motion.
Given that the full D.C. Court of Appeals includes seven Democratic appointees and only four Republican appointees, a vote of the entire court could well result in a very different decision.
By: Rick Ungar, Op-Ed Contributor, Forbes, July 7, 2014
“The Incompetence Dogma”: So Much For Obamacare Not Working
Have you been following the news about Obamacare? The Affordable Care Act has receded from the front page, but information about how it’s going keeps coming in — and almost all the news is good. Indeed, health reform has been on a roll ever since March, when it became clear that enrollment would surpass expectations despite the teething problems of the federal website.
What’s interesting about this success story is that it has been accompanied at every step by cries of impending disaster. At this point, by my reckoning, the enemies of health reform are 0 for 6. That is, they made at least six distinct predictions about how Obamacare would fail — every one of which turned out to be wrong.
“To err is human,” wrote Seneca. “To persist is diabolical.” Everyone makes incorrect predictions. But to be that consistently, grossly wrong takes special effort. So what’s this all about?
Many readers won’t be surprised by the answer: It’s about politics and ideology, not analysis. But while this observation isn’t particularly startling, it’s worth pointing out just how completely ideology has trumped evidence in the health policy debate.
And I’m not just talking about the politicians; I’m talking about the wonks. It’s remarkable how many supposed experts on health care made claims about Obamacare that were clearly unsupportable. For example, remember “rate shock”? Last fall, when we got our first information about insurance premiums, conservative health care analysts raced to claim that consumers were facing a huge increase in their expenses. It was obvious, even at the time, that these claims were misleading; we now know that the great majority of Americans buying insurance through the new exchanges are getting coverage quite cheaply.
Or remember claims that young people wouldn’t sign up, so that Obamacare would experience a “death spiral” of surging costs and shrinking enrollment? It’s not happening: a new survey by Gallup finds both that a lot of people have gained insurance through the program and that the age mix of the new enrollees looks pretty good.
What was especially odd about the incessant predictions of health-reform disaster was that we already knew, or should have known, that a program along the lines of the Affordable Care Act was likely to work. Obamacare was closely modeled on Romneycare, which has been working in Massachusetts since 2006, and it bears a strong family resemblance to successful systems abroad, for example in Switzerland. Why should the system have been unworkable for America?
But a firm conviction that the government can’t do anything useful — a dogmatic belief in public-sector incompetence — is now a central part of American conservatism, and the incompetence dogma has evidently made rational analysis of policy issues impossible.
It wasn’t always thus. If you go back two decades, to the last great fight over health reform, conservatives seem to have been relatively clearheaded about the policy prospects, albeit deeply cynical. For example, William Kristol’s famous 1993 memo urging Republicans to kill the Clinton health plan warned explicitly that Clintoncare, if implemented, might well be perceived as successful, which would, in turn, “strike a punishing blow against Republican claims to defend the middle class by restraining government.” So it was crucial to make sure that reform never happened. In effect, Mr. Kristol was telling insiders that tales of government incompetence are something you peddle to voters to get them to support tax cuts and deregulation, not something you necessarily believe yourself.
But that was before conservatives had fully retreated into their own intellectual universe. Fox News didn’t exist yet; policy analysts at right-wing think tanks had often begun their careers in relatively nonpolitical jobs. It was still possible to entertain the notion that reality wasn’t what you wanted it to be.
It’s different now. It’s hard to think of anyone on the American right who even considered the possibility that Obamacare might work, or at any rate who was willing to admit that possibility in public. Instead, even the supposed experts kept peddling improbable tales of looming disaster long after their chance of actually stopping health reform was past, and they peddled these tales not just to the rubes but to each other.
And let’s be clear: While it has been funny watching the right-wing cling to its delusions about health reform, it’s also scary. After all, these people retain considerable ability to engage in policy mischief, and one of these days they may regain the White House. And you really, really don’t want people who reject facts they don’t like in that position. I mean, they might do unthinkable things, like starting a war for no good reason. Oh, wait.
By: Paul Krugman, Op-Ed Columnist, The New York Times, June 26, 2014
“Yes He Could”: Health Care And Climate, President Obama’s Big Deals
Several times in recent weeks I’ve found myself in conversations with liberals who shake their heads sadly and express their disappointment with President Obama. Why? I suspect that they’re being influenced, often without realizing it, by the prevailing media narrative.
The truth is that these days much of the commentary you see on the Obama administration — and a lot of the reporting too — emphasizes the negative: the contrast between the extravagant hopes of 2008 and the prosaic realities of political trench warfare, the troubles at the Department of Veterans Affairs, the mess in Iraq, and so on. The accepted thing, it seems, is to portray Mr. Obama as floundering, his presidency as troubled if not failed.
But this is all wrong. You should judge leaders by their achievements, not their press, and in terms of policy substance Mr. Obama is having a seriously good year. In fact, there’s a very good chance that 2014 will go down in the record books as one of those years when America took a major turn in the right direction.
First, health reform is now a reality — and despite a shambolic start, it’s looking like a big success story. Remember how nobody was going to sign up? First-year enrollments came in above projections. Remember how people who signed up weren’t actually going to pay their premiums? The vast majority have.
We don’t yet have a full picture of the impact of reform on the previously uninsured, but all the information we do have indicates major progress. Surveys, like the monthly survey by Gallup, show a sharp drop in the percentage of Americans reporting themselves as uninsured. States that expanded Medicaid and actively promoted the new exchanges have done especially well — for example, a new survey of Minnesota shows a 40 percent drop in the number of uninsured residents.
And there’s every reason to expect a lot of additional progress next year. Notably, additional insurance companies are entering the exchanges, which is both an indication that insurers believe things are going well and a reason to expect more competition and outreach next year.
Then there’s climate policy. The Obama administration’s new rules on power plants won’t be enough in themselves to save the planet, but they’re a real start — and are by far the most important environmental initiative since the Clean Air Act. I’d add that this is an issue on which Mr. Obama is showing some real passion.
Oh, and financial reform, although it’s much weaker than it should have been, is real — just ask all those Wall Street types who, enraged by the new limits on their wheeling and dealing, have turned their backs on the Democrats.
Put it all together, and Mr. Obama is looking like a very consequential president indeed. There were huge missed opportunities early in his administration — inadequate stimulus, the failure to offer significant relief to distressed homeowners. Also, he wasted years in pursuit of a Grand Bargain on the budget that, aside from turning out to be impossible, would have moved America in the wrong direction. But in his second term he is making good on the promise of real change for the better. So why all the bad press?
Part of the answer may be Mr. Obama’s relatively low approval rating. But this mainly reflects political polarization — strong approval from Democrats but universal opposition from Republicans — which is more a sign of the times than a problem with the president. Anyway, you’re supposed to judge presidents by what they do, not by fickle public opinion.
A larger answer, I’d guess, is Simpson-Bowles syndrome — the belief that good things must come in bipartisan packages, and that fiscal probity is the overriding issue of our times. This syndrome persists among many self-proclaimed centrists even though it’s overwhelmingly clear to anyone who has been paying attention that (a) today’s Republicans simply will not compromise with a Democratic president, and (b) the alleged fiscal crisis was vastly overblown.
The result of the syndrome’s continuing grip is that Mr. Obama’s big achievements don’t register with much of the Washington establishment: he was supposed to save the budget, not the planet, and somehow he was supposed to bring Republicans along.
But who cares what centrists think? Health reform is a very big deal; if you care about the future, action on climate is a lot more important than raising the retirement age. And if these achievements were made without Republican support, so what?
There are, I suppose, some people who are disappointed that Mr. Obama didn’t manage to make our politics less bitter and polarized. But that was never likely. The real question was whether he (with help from Nancy Pelosi and others) could make real progress on important issues. And the answer, I’m happy to say, is yes, he could.
By: Paul Krugman, Op-Ed Columnist, The New York Times, June 16, 2014
“Oh, The Wayward Priorities”: If Republicans Hated War Like They Hate Obamacare, There Wouldn’t Be an Iraq Debacle
The Affordable Care Act might eventually be a terrible idea for the country. Perhaps, as Paul Broun (R-GA) once said, “Obamacare is going to destroy everything that we know as a nation.” Maybe Michelle Bachmann is right when she claimed, “I believe God is going to answer our prayers and we’ll be freed from the yoke of Obamacare.”In addition to GOP lawmakers making statements vehemently condemning the Affordable Care Act, they’ve tried over 35 times to repeal the law in Congress.
When it comes to big government healthcare programs, conservatives have likened the ACA to everything from communism to death panels. However, when it comes to war, the GOP doesn’t see Uncle Sam picking the pockets of citizens. The $4 to $6 trillion that the Iraq and Afghanistan Wars will cost taxpayers never evokes anger from the Tea Party. Rather, it’s funding someone else’s surgery that really gets conservatives furious. Sadly, if Republicans viewed healthcare programs in the same manner as they viewed war over a decade ago, we wouldn’t be in the gigantic debacle called Iraq.
Soon after the death of three thousand Americans on 9/11, Republicans worked vehemently to sell the Iraq War. In 2002, the same Bill Krystal who now bemoans Obamacare believed a war in Iraq “could have terrifically good effects throughout the Middle East.”In 2002, Vice President Cheney in a speech stated the “entire world knows beyond dispute that Saddam Hussein holds weapons of mass destruction in large quantities.”In early 2003, the Bush administration told the UN Security Council, “Either you’re with us or against us.”
Any opposition leading up to the Iraq War Resolution was met with political attacks and even Vietnam War heroes weren’t safe from Karl Rove and a united Republican Party. Rove and Rep. Saxby Chambliss led the charge against Senator Max Cleland and questioned his patriotism for criticizing the impending insurgent war in the Middle East. Chambliss attacked the triple amputee Vietnam Veteran “for breaking his oath to protect and defend the Constitution,” in addition to besmirching his character for having the audacity to be against the Iraq War Resolution. In order to better understand the mood of the time period, it’s important to note that Chambliss got a medical deferment from Vietnam because of a football injury to his knee and Rove has never joined the military.
When General Eric Shinseki advocated a far greater troop level before the invasion-closer to a number like 300,000 soldiers — he too was denigrated by Republicans. However, by 2007, even Lindsay Graham was quoted in a New York Times article as admitting Shinseki was right. As a result of invading and occupying a country as large as Iraq with an insufficient number of troops (in addition to a number of other mistakes), Bush announced a surge of troops in 2007. Essentially, this surge worked as a draft in that it prolonged tours of duty, keeping American soldiers in combat longer than in any other war in U.S. history. This prolonged time in battle directly led to the record number of PTSD cases as well as exacerbating the issue of suicide in the military.
The Iraq War Resolution passed with 215 House Republicans voting for it and 126 Democrats voting against the war. In the Senate, 48 out of 49 Republicans voted for it while 21 Democrats voted against going into Iraq. After the initial invasion, President Bush addressed the United Nations in late 2003 and declared America’s invasion a noble endeavor:
The regime of Saddam Hussein cultivated ties to terror while it built weapons of mass destruction. It used those weapons in acts of mass murder, and refused to account for them when confronted by the world… Across Iraq, life is being improved by liberty.
While the country was still in shock, President Bush spoke confidently about the reasons for U.S. involvement in Iraq.
In 2004, Donald Rumsfeld justified the rush to war (and the fact Humvees weren’t protected from IED’s with extra armor) by saying, “As you know, you go to war with the army you have, not the army you might want or wish to have at a later time.” In 2007, after a civil war between Shia and Sunni threatened to destroy Iraq, President Bush addressed the nation in a speech defending a surge in troop levels:
The consequences of failure are clear: Radical Islamic extremists would grow in strength and gain new recruits. They would be in a better position to topple moderate governments, create chaos in the region and use oil revenues to fund their ambitions. Iran would be emboldened in its pursuit of nuclear weapons.
Changing his tune from 2003, and possibly forshadowing 2014, Bush advocated widening the war because “the consequences of failure are clear.”
Today, after all the monumental sacrifices made by American soldiers and their families, and with all the money spent nation building in Iraq, America has to contend with a new threat. Extremist militants named ISIS now have control of Fallujah (a one hour drive from Bagdad) and just recently conquered Mosul, one of Iraq’s largest cities and the home of two million people. Of course, the GOP is now changing the narrative from Bush’s speeches to a recent call for further military action in Iraq. Interestingly, no word yet has been heard from the Tea Party about the financial cost of further military action in Iraq.
It says something about a political party when a health care law is the end of the world, but an insurgent war is something worthy of attacking even a triple amputee war veteran to defend. If only one could go back in time and tie in an amnesty clause or a nationalized healthcare law to the Iraq War Resolution, then maybe GOP lawmakers wouldn’t have worked so hard to send the United States into the Iraq debacle. The truth is that the ACA, even if it falls short of its promises, won’t do nearly as much damage to this country as the Iraq War. Analyzing the GOP’s reaction to both will give you a good idea of its priorities.
By: H. A. Goodman, The Huffington Post Blog, June 15, 2014
“When A Politician Tells The Truth”: GOP Candidates Are Seeing Obamacare In A Different Light
In an interview with a reporter last month, Senator Thad Cochran (R-MS) “accidentally” made complimentary remarks about the Affordable Care Act, routinely known as Obamacare. (His campaign aides claim he misunderstood the question.) Some analysts say those remarks were among the missteps that have left the senator in danger of defeat as he faces a primary runoff against a Tea Party upstart, Chris McDaniel.
It’s possible that Cochran was confused when he told The Washington Post that the ACA “is an example of an important effort by the federal government to help make health care available, accessible and affordable.” It’s also possible that he committed the standard political gaffe as commentator Michael Kinsley defined it years ago: “… when a politician tells the truth — some obvious truth he isn’t supposed to say.”
Either way, Cochran’s comments are a reminder of a pronounced shift among Republican politicians discussing Obamacare on the campaign trail. Few of them are delivering feisty denunciations and declarations of repeal, as they did just a few months ago. Even in deeply conservative states, Republicans are muting their rhetoric, acknowledging positive tenets of the ACA and engaging in equivocation — or, in some cases, fabrication — to cover their tracks.
That’s because the political terrain has shifted beneath their feet. In practice, as its proponents have long predicted, the ACA has helped millions of people to obtain health care they would not have been able to afford otherwise. Surely it’s no surprise that few voters want to give up benefits they have just begun to enjoy.
That has meant some less-than-artful dodging by such indefatigable partisan warriors as Senate Minority Leader Mitch McConnell. In keeping with the GOP script, McConnell has been adamant about repealing the ACA.
But in his home state of Kentucky, Kynect, the state-run exchange that connects residents to Obamacare, is wildly popular, having signed up more than 400,000 people for health insurance. So McConnell takes advantage of voters’ confusion — many don’t understand that Kynect is Obamacare — to suggest he supports the exchange but not that foul law that made it possible. Indeed, he has gone so far as to declare that they are unconnected — a laughable lie, even in the warped reality of a political campaign.
Several other prominent Republicans have found themselves in a similar bind, as many facets of the law prove politically popular. Voters still don’t like “Obamacare,” but they like many of its provisions, including those that outlaw bans on patients who have pre-existing conditions.
Voters also support the provision that prevents lifetime caps on insurance payments — something that benefits those with serious, chronic illnesses — and the one that allows parents to keep their children insured until they are 26 years old. Indeed, the only provision that remains broadly unpopular is the mandate that requires every adult to buy health insurance (a necessary feature of the law, and one that many Republicans, including Mitt Romney, once believed in).
Perhaps the most dramatic shift among GOP pols has concerned Obamacare’s Medicaid expansion. The Supreme Court’s ruling affirming the ACA made the Medicaid expansion optional for states, and most Republican governors resisted it. That was foolish and shortsighted, since the federal government pays the overwhelming portion of the additional cost. Those governors — and their GOP colleagues in Congress — were willing to trade better health for some of their poorest residents for the chance to poke Obama in the eye.
But now some of them are seeing the error of that calculation. For one thing, it’s hard to own up to a willingness to shaft the working poor. For another, some rural hospitals can’t afford to stay open unless they receive additional Medicaid funds. Those hard facts have forced GOP Senate candidates such as Michigan’s Terri Lynn Land to back away from their diehard opposition to Obamacare.
And, as more Americans benefit, the resistance will grow weaker still. That was the historical cycle with Medicare — which the GOP establishment fought long and hard — and Obamacare will likely follow that path to broad acceptance.
By: Cynthia Tucker, Visiting Professor at The University of Georgia; The National Memo, June 7, 2014
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 