“Reality Is Starting To Set In”: Is The “Mend It” Period Of The Affordable Care Act’s Evolution Beginning?
All of a sudden, people in Washington seem to want to fix the Affordable Care Act. And regardless of their motivations, that should be—well, maybe “celebrated” is too strong a word, but we can see it as a necessary and positive development. Is it possible that the arguments about whether the ACA was a good idea or should have been passed in the first place are actually going to fade away, and we can get down to the businesses of strengthening the parts of it that are working and fixing the parts that aren’t? It might be so.
Sure, cretinous congressional candidates will continue to display their seriousness by pumping paper copies of the law with bullets, probably for years to come. But with this year’s open enrollment period coming to an end in a few days, a particular reality is starting to set in, namely that, however you feel about the law, millions of Americans have now gotten health insurance because of it. Repealing it would mean taking that insurance away. So let’s look at what people whose political fortunes are dependent on some measure of anti-ACA grandstanding are doing.
First, a group of centrist Democrats, mostly from conservative states, offered a plan to make some changes to the ACA, some of which are more meaningful and reasonable than others. Yes, they’re doing it because they want to give themselves some political cover. But that’s OK. Meanwhile, some Republicans are, for the umpteenth time, crafting a package of things they claim will “replace” the ACA. Of course it’s the same few things they’ve always advocated—make it impossible for people to sue for medical malpractice (AKA “tort reform”), let people buy insurance across state lines, encourage health savings accounts. Nobody who has thought about health care for five minutes thinks those “reforms” would do anything to address real health care challenges, but more importantly, they wouldn’t prevent the massive upheaval that would occur if you repealed the ACA. And that’s a reality that will become increasingly clear: the disruption of taking away the ACA now would be even greater than the disruption the law brought about in the first place.
So if Republicans took over the Senate, there would be a brief period of kabuki, in which they would attempt to pass their reform package, then President Obama would say, “This is a joke” and veto if it passed. Then they’d have to decide if they actually wanted to address their specific complaints about the ACA. And yes, we have to start from the assumption that everything conservatives say about the Affordable Care Act is offered in bad faith (sorry, conservatives, but you’ve earned it). That doesn’t mean, however, that they can’t prove that assumption wrong at some later date.
Democrats should respond by welcoming a more particular debate about the ACA, starting from the presumption that it’s law now and millions of people are dependent on it, so the question is what needs adjustment. Republicans can no longer just shout “This law sucks, because freedom!” It’s too late for that.
And some context is in order. Before the law was even passed, many of its advocates were careful to note that no matter how much care went into its design, adjustments were going to be required as it was implemented. That’s how things always go with complicated laws: conditions change, certain features don’t work the way they were supposed to, and unforeseen challenges emerge. Revising existing legislation is a substantial part of lawmaking, and always has been. For instance, when Social Security was created in 1935, it was written to exclude agricultural and domestic workers, which included most blacks in the South (there’s some debate about whether this was actually done in order to secure the support of Southern segregationists). That didn’t change until the 1950s. Survivor benefits for spouses and children were also added later. Cost of living adjustments were added later. In other words, the most successful and popular social program in American history required a lot of changes and alterations as it evolved, and no one ever expected that the ACA would be any different.
There are going to be changes to the ACA in the coming years, just as there should be. The trick now will be making sure the right changes are made.
By: Paul Waldman, Contributing Editor, The American Prospect, March 28, 2014
“ACA Enrollment Tops 6 Million”: The Imminent Implosion Of The Affordable Care Act Has Been Cancelled
The expectation all along was that health care enrollment through the Affordable Care Act would spike shortly before the March 31 deadline. As of this afternoon, those expectations are very much in line with reality.
More than 6 million people have signed up for health insurance on the new exchanges, a number that signals a tremendous last-minute surge, the White House said Thursday.
President Barack Obama told volunteers and navigators helping sign people up that 1.5 million people visited HealthCare.gov on Wednesday – the highest-traffic day yet. Officials have said they logged more than a million visits each day so far this week.
Remember, this total only refers to consumers who’ve signed up for private coverage through exchange marketplaces. It doesn’t include Americans who’ve gained coverage through Medicaid expansion. For that matter, clearing the 6-million milestone is an important threshold, but there’s still time remaining in the open-enrollment period and it’s not unrealistic to think we’ll see 6.2 million by next week.
“We are seeing near-record numbers of consumers coming to check out their options and enroll in coverage. Yesterday alone, we had 1.5 million visits to HealthCare.gov and took more than 430,000 calls at our 24/7 call center,” said Marilyn Tavenner, head of the Centers for Medicare and Medicaid Services.
As of March 1 – not quite four weeks ago – 4.2 million Americans had enrolled through exchanges, suggesting we’ve seen nearly two million consumers sign up in less than a month.
It’s easy to forget, but this seemed like a pipe dream last fall. In October, the first month of the open-enrollment period, just 106,185 consumers signed up for insurance through an exchange – causing Republicans to not only celebrate, but to openly mock the system by noting a variety of sports venues that hold more than 106,185 attendees.
It was obviously proof, we were told at the time, that the Affordable Care Act itself was “hurtling toward failure.”
Oops.
The enrollment totals must seem literally unbelievable to Republicans, who managed to convince one another that the ACA is not only catastrophically flawed, but on an inevitable road towards imploding.
Indeed, as Paul Krugman noted earlier today, “[P]eople in the GOP are still working with a completely wrong narrative — namely, that Obamacare is failing, and that these are desperate ploys to save a sinking ship. The reality is quite different: enrollments have clearly surged in the final month…. How will the GOP respond when the numbers come in?”
I don’t know the answer to that question, but I suspect it’ll have something to do with Benghazi.
To reiterate a point from early February, those who say they hate “Obamacare” won’t want to hear this, but the imminent implosion of the Affordable Care Act has been cancelled.
What’s more, this is less of a comeback story than a story of normalcy and effective governance. There was a fair amount of panic in November – remember the pieces that predicted “Obamacare may destroy all of liberalism forever”? – but there were plenty of voices counseling patience. There were problems, but they were surmountable. There were elements that were broken, but they could be fixed.
The recent progress, in other words, isn’t some remarkable fluke the White House achieved through a Hail Mary pass. Rather, what we’re seeing now is progress many of us expected to see all along.
By: Steve Benen, The Maddow Blog, March 27, 2014
“The Real Cost Of Republican Cruelty”: Voters Should Know Who’s Holding Up Their Health Care
With one week remaining before the March 31 deadline for health coverage this year, a Republican filing a lawsuit against the Affordable Care Act has become a familiar, if tiresome, sight.
But Republicans filing a lawsuit against the law on the grounds of copyright infringement? That’s something new.
Yet that is effectively what happened this month in Louisiana. On March 14, the state’s lieutenant governor sued the progressive group MoveOn.org over a billboard criticizing Gov. Bobby Jindal’s refusal to expand Medicaid in the state. The billboard uses Louisiana’s tourism slogan — “Pick Your Passion!” — and adds: “But hope you don’t lose your health. Gov. Jindal’s denying Medicaid to 242,000 people.” The lawsuit claims that the MoveOn ad will “result in substantial and irreparable harm, injury, and damages” to the Louisiana tourism office — as if denying health insurance to the neediest will not cause the state “substantial and irreparable harm.”
Legal experts say Jindal’s ploy has no chance of succeeding, thanks to the First Amendment. (This would be the same First Amendment that the governor passionately invoked in defense of “Duck Dynasty” patriarch Phil Robertson’s right to spew racist and homophobic vitriol.)
Jindal’s reason for refusing to expand Medicaid is as specious as his reason for suing MoveOn. He claims, falsely, that the expansion would divert funds that now go to disabled individuals under traditional Medicaid. In reality, the health-care law doesn’t harm the existing program. It creates several programs to improve care for the disabled receiving Medicaid; Jindal enrolled Louisiana in three of them. But this hasn’t stopped him from blaming the ACA for his own bad policies, including cuts he made to state Medicaid funding for pregnant women.
Louisiana isn’t the only state where Republicans are preventing thousands of low-income Americans from receiving health care. In Virginia, where state lawmakers refuse to expand Medicaid, hospitals will face higher costs and reduced services as a result. One million Texans will be denied access to coverage if the state continues to reject the Medicaid expansion. Meanwhile, Mississippi Gov. Phil Bryant is willing to leave 300,000 of his neediest citizens uninsured. His reasoning? He’s afraid that the law might be repealed, leaving his state no way to meet its commitments — an ironic stance for a Republican to take, since they’re the ones trying to repeal it!
The 19 states that are refusing to expand Medicaid aren’t just leaving low-income Americans out to dry — they’re also leaving billions of health-care dollars on the table. While Bobby Jindal busies himself over a billboard, his state’s internal analysis found that Medicaid expansion would save Louisiana as much as $134 million in 2015 alone.
The real cost of Republican cruelty, however, cannot be measured in dollars and cents, but in people’s lives. Researchers at Harvard and the City University of New York concluded that without the Medicaid expansion, individuals will go without checkups, cancer screenings and treatment for diseases such as diabetes and depression — leading to thousands of premature and preventable deaths.
So much for compassionate or fiscal conservatism.
Amid the misinformation and fear-mongering, however, lies a real opportunity for Democrats to increase support for the ACA and win more races in November.
Consider the recent special election in Florida’s 13th Congressional District, where Republican David Jolly’s victory is being widely interpreted as a rebuke of the Affordable Care Act. Polls suggest that it wasn’t Obamacare that hurt Democrat Alex Sink but the same factor that often hurts Democrats in midterm elections: low turnout.
To combat this, what if Democrats organized a clear, concerted effort to demonstrate how Republicans are denying millions of Americans access to health insurance?
There are already signs that raising awareness is working. The Moral Monday movement, which favors expanding Medicaid, has been getting attention for its protests at public meetings in several southern states. Other states are considering following the lead of New Hampshire, where the state Senate voted, with Republican support, for a modified expansion.
At the same time, progressives should back MoveOn’s brilliant billboard campaign parodying the tourism slogans of not just Louisiana but also Texas, Florida, Nebraska, Virginia and Wisconsin — which are all blocking the Medicaid expansion.
The campaign might consider going to South Dakota, Alaska, Georgia, North Carolina, Mississippi and Maine, which have Republican governors, contested Senate races and huge numbers of residents who are being denied access to health care. They need to know who is at fault.
High-profile Democrats running for federal office this cycle should be similarly bold. Voters, especially low-income voters who are most hurt by the GOP’s cruel stance on health care, need to understand just what’s at stake. It’s time for Democrats to run on health-care reform, not away from it — and Medicaid expansion is a worthy place to start. If they need to know how far Republicans have gone to prevent it, there’s a billboard along Interstate 10 in Louisiana that’s a pretty good guide.
By: Katrina vanden Heuvel, Opinion Writer, The Washington Post, March 25, 2014
“John Boehner’s Hypocritical Griping About The Obamacare Deadline Delay”: Conservatives’ Real Beef, That People Want To Sign Up
The Obama Administration has made another adjustment to the Affordable Care Act and the critics are making another fuss.
The adjustment, first reported (I think) by Amy Lotven for Inside Health Policy, is an extension of the open enrollment period for buying private insurance through the new Obamacare marketplaces. Officially, most people have until March 31 to sign up for a plan. (The exception are people who lose a job or have some other, similar life-altering experience. They can sign up throughout the year.) But on Wednesday, the administration announced that it will be offering some extra time to consumers who don’t finish their applications in time. They’ll be able to use the websites, just like they can now, only they’ll have to check a box attesting to the fact that they started the application process before April 1.
Exactly how many extra days will these folks get? And what’s to prevent somebody from lying—effectively taking advantage of the grace period to get insurance after the official deadline? On a predictably painful and frustrating conference call Wednesday, officials from the Department of Health and Human Services wouldn’t answer these questions directly. Obamacare critics, meanwhile, were quick to express their displeasure.”What the hell is this? A joke?” House Speaker John Boehner said at a press conference. “Another deadline made meaningless. If he hasn’t put enough loopholes in the law already, the administration is now resorting to an honor system to enforce it.”
Boehner appears to be right about the lack of enforcement. Nothing can stop people from gaming this new system. And establishing some kind of fixed date might be a good idea, as Philip Klein points out at the Washington Examiner, although in practice the insurers will basically do that on their own. (If they don’t get applications by the middle of the month, they won’t start coverage on May 1.) But even insurers are shrugging at this and it’s not clear why Boehner or anybody else should react differently.
There’s genuine reason to think that people who waited until the last minute to sign up really might have problems completing the process in time. Traffic to the online marketplaces has been increasing rapidly, with levels now rivaling the surge that took place in late December. On Tuesday, 1.2 million people visited healthcare.gov, according to officials. At some point, the congestion could trigger a built-in queuing system—making it difficult for last-minute applicants to finish enrollment by midnight on March 31. As administration officials pointed out, you don’t stop people from voting because they were standing in line when the polls closed. Or, to borrow a phrase I saw on twitter, you don’t kick somebody out of a restaurant because their dish wasn’t ready before closing time.
As for people gaming the system to buy themselves extra time, sure, it’s going to happen. But it’s unlikely to happen that frequently, certainly not enough to upset the actuarial balance of insurance plans. And it’s not like this is unprecedented. As Igor Volskly explained in an item for ThinkProgress, the Bush Administration did pretty much the same thing with Medicare Part D:
In May of 2006, just days before the end of open enrollment, President Bush took administrative action to waive “penalty fees for very low-income seniors and people with disabilities who sign up late” and allowed “the same impoverished beneficiaries to sign up for Medicare drug coverage until Dec. 31.” …
Like Obamacare, the launch of President George W. Bush’s prescription benefit plan was hampered by technical glitches, setbacks, and mass confusion. As the May 15 deadline for enrollment loomed, a bipartisan group of lawmakers advocacy organizations, and a surprising number of newspaper editorials, urged the administration to extend the enrollment period and protect seniors from the penalties associated with late enrollment.
Of course, the real issue here for conservatives isn’t this one delay. It’s all of the delays, plus all of the exceptions and waivers. And it’s totally reasonable to ask hard questions about these, particularly when it comes to the limits of presidential authority and the precedent it sets for the future. (I’m still waiting to hear from more lawyers on the constitutional issues.) But, for what it’s worth, the Affordable Care Act really did give HHS a huge amount of leeway over how to implement the law—and it did so for a very good reason. Given the inherent complexity of health care, there’s no way Congress could have figured out all of the details. It made sense to delegate that authority—to put in place new systems, but leave the nitty-gritty of regulations and transitions to the administration.
For each one of these extensions or delays, the ultimate question is whether they change the law’s ability to realize its basic goals—which, in this case, means encouraging people to buy new private health plans while maintaining a stable insurance market. Giving people a little extra time to enroll wouldn’t seem to impede this kind of progress. If anything, it would seem to enhance it. And maybe that’s what really bothers some of the law’s fiercer critics.
By: Jonathan Cohn, The New Republic, March 26, 2014
“Can Liberals Trust John Roberts To Rescue Obamacare Again?”: A Pro-Hobby Lobby Ruling Would Be His Most Radical Decision
Most Supreme Court watchers are fixated these days on Sebelius v. Hobby Lobby—the important challenge to the Affordable Care Act’s contraception mandate scheduled for argument Tuesday. And why wouldn’t they be? With its potent mix of religion, sex, Obamacare, and prayerful corporations, it’s the blockbuster case of the term. It is also a crucial test of Chief Justice John Roberts’s leadership on the Supreme Court.
Just two years ago, Roberts cast the deciding vote to largely uphold the Affordable Care Act. While the country remains divided over whether he acted like a traitor or a statesman, all would have to agree that, given the level of public scrutiny on the Court and the case’s overall importance (both substantively and to the President’s legacy), Roberts’s ACA vote was the defining moment of his tenure thus far. In a bold move, he broke ranks with his conservative colleagues, joined with the Court’s progressive wing, and preserved the President’s signature achievement. In Hobby Lobby, Roberts meets the ACA yet again, and the stakes for his reputation—and that of his Court—couldn’t be higher.
Chief Justice Roberts has often spoken about how important it is for the justices to maintain the legitimacy of the Court—by limiting divisive rulings, moving the law incrementally, and trying to stay above politics. For instance, in an interview with Jeffrey Rosen early in his tenure as chief justice, Roberts explained that the Court is “ripe for a … refocus on functioning as an institution, because if it doesn’t it’s going to lose its credibility and legitimacy.” Expressing admiration for the great Chief Justice John Marshall, Roberts added that, even as a committed Federalist, Marshall preferred to move the law “in a way that … wasn’t going to alienate people on the Court and turn the Court into another battleground.” While commentators certainly quibble over just how radical an effect John Roberts has had on the law—even Justice Antonin Scalia once attacked the chief justice’s approach in a pre-Citizens United campaign finance case as “faux judicial restraint”—there’s little question that Roberts himself prefers the image of the modest jurist to that of judge-as-hero (think Earl Warren) or judge-as-prophet (think Scalia).
He cultivated this image most dramatically in the first ACA case, joining with his progressive colleagues to uphold a Democratic president’s most important achievement—and in the middle of an election year, no less. Furthermore, just last term, the Roberts Court managed to reach an unlikely compromise in a blockbuster affirmative action case, and Roberts himself preserved the marriage-equality status quo in California with his majority opinion in Hollingsworth v. Perry. However, even in areas where Roberts has pushed the law dramatically to the right (like voting rights), he has tended to prefer a slower-moving, more incremental approach than his more radical colleagues, with seismic shifts (like Shelby County v. Holder) coming only after the political ground has already been prepared with previous, more modest decisions (like NAMUDNO v. Holder)—legal warning shots, if you will. He has also chipped away at progressive laws in a series of low-profile cases—for instance, those on the Court’s business docket. This strategy allows him to move the law to the right, while also preserving the institutional legitimacy of the Court.
Through this lens, Hobby Lobby presents a potential dilemma for the savvy Chief Justice. In the case, Hobby Lobby, a craft-store chain owned by Southern Baptists, is suing the government to seek religious exemption from the ACA’s requirement that it offer insurance plans to employees that cover contraception at no extra cost. On the one hand, Roberts is confronting the ACA for the first time since the conservative firestorm over his decision largely upholding the Act. There’s little doubt that he’ll be tempted to throw conservatives a bone, siding with Hobby Lobby and against the ACA.
On the other hand, a vote in favor of Hobby Lobby requires the chief justice to do at least three things that threaten major disruptive consequences and present serious downstream risks for the Court as an institution. First, he must conclude that corporations have the same rights to religious freedom as living, breathing humans—something that the Supreme Court has never done. Second, he must unsettle centuries of well-established corporate law practice—a move at loggerheads with the Roberts Court’s (and John Roberts’s own) pro-corporate leanings. And, third, he must extend unprecedented protections to a secular employer, therefore opening the floodgates to new religious freedom challenges to countless other laws. In short, a vote for Hobby Lobby means endorsing a radical departure from well-settled precedent—perhaps nowhere more strikingly than in the realm of religious freedom.
In the decades leading up to the Supreme Court’s 1990 landmark decision in Employment Division v. Smith, courts heard many free exercise challenges. For the most part, they followed a familiar pattern: A law applied to everyone in a given jurisdiction; someone came to court and claimed a religious objection to that law; and the court ultimately rejected that challenger’s claim. This was true in the Supreme Court and, as explained by Professor James Ryan, it was also true in the lower courts. The bottom line—whether you were an Amish employer refusing to pay Social Security taxes or an army doctor wishing to wear a yarmulke while on duty, you were probably going to lose your free exercise claim.
Then along came Smith—a free exercise decision that hit the legal and political world like a thunderbolt. The case involved Native Americans dismissed from their jobs for failing a drug test. (They had smoked peyote during a religious ceremony.) Because of this drug use—religiously motivated or not—Oregon then denied them unemployment benefits. When they challenged this action on free exercise grounds, the Court rejected their claim. However, rather than simply applying the Court’s traditional balancing test (where the Court weighed a given law’s burden on religion against the governmental interest advanced by the law), Justice Scalia struck a radical pose, shelving it for a bright-line rule that was even less protective of religious objectors—and hence the controversy.
Of course, under the pre-Smith test, religious objectors were already losing these cases. Following Smith, they were only slightly more likely to do so. Nevertheless, Congress responded to Scalia’s decision by enacting a new law explicitly overturning Smith and restoring the pre-Smith status quo, but all that really did was reestablish an environment where free exercise claims rarely succeeded.
Given this legal backdrop, the key question for Roberts leading up to the Hobby Lobby argument is whether he’ll stick with this traditional approach or adopt a new, more stringent test—one even stricter than anything that existed in the pre-Smith world. If the chief justice takes the more radical path—and, more importantly, if he convinces at least four of his colleagues to go along with him—Hobby Lobby could, indeed, live up to the hype and become a truly revolutionary case.
For instance, such a ruling would entangle lower courts and the Roberts Court itself in knotty free exercise challenges (and a lot of them)—challenges that would potentially require judges to define what counts as “religious belief,” assess the sincerity of those beliefs that pass muster, and apply the traditional balancing test with serious bite. Courts have balked at going down this path in the past—and for good reason. Furthermore, the Supreme Court has never granted a religious accommodation to a secular business that comes at the expense of its employees—an unprecedented move that would allow secular employers to effectively impose their own religious views on the employees, even in the face of contrary laws.
In the end, however tempted Chief Justice Roberts may be to strike a blow to Obamacare in this highly publicized, blockbuster case—and however much his conservative colleagues may be pulling him in that direction—Roberts can’t give in to these pressures without tarnishing his carefully cultivated image as a cautious jurist and, in the process, unleashing a wave of unpredictable (and risky) consequences.
By: Tom Donnelly, Counsel at Constitutional Accountability Center; The New Republic, March 24, 2014
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