“A Rickety Scaffold Of Fictional History”: The Sham Lawsuit That Could Eviscerate Obamacare
Republicans in the House voted on Wednesday to repeal the Affordable Care Act—for the fifty-six time. After four years these show votes have become a tedious joke. But Wednesday’s action had bleaker implications, as it was cast in the shadow of a lawsuit that could undermine the healthcare law in fatal ways.
In a few weeks the Supreme Court will hear oral arguments in King v. Burwell, which contends that the text of the ACA allows the IRS to give subsidies only to people who purchase insurance through exchanges set up by their state, and not to those who rely on the federally run marketplace. If the plaintiffs prevail, some 7 million people in the thirty-four states that have declined to set up their own exchanges would lose the tax credits that subsidize their insurance. Coverage would likely become unaffordable for many of them; without enough people in the marketplace, the law could collapse into a “death spiral.” In human terms, a group of hospitals wrote in a brief supporting the government, a ruling in favor of the plaintiffs “would be a disaster for millions of lower- and middle-income Americans…. The ranks of the uninsured will swell again, with all that portends in the way of untreated illness and overwhelming debt.”
To build their case, the plaintiffs have erected a rickety scaffold of fictional history around a single phrase in the 906-page law. The section of the law in question concerns the calculation of subsidies available to people “enrolled in through an exchange established by the State.” The plaintiffs argue that lacking an explicit reference to subsidies available to people enrolled in the federal exchanges, the text indicates that subsidies are only available in states operating their own. Furthermore, the plaintiffs argue, this was not sloppy writing but instead “reflects a specific choice by Congress” to design the subsidies as a carrot to entice states to establish their exchanges and punish them if they failed to do so.
The lack of structural integrity in the plaintiff’s case has become increasingly obvious in the past week, thanks to a sheaf of briefs filed states, lawmakers, and the healthcare industry. In sum, there’s about zero evidence for the challengers’ version of history, and what proof they do muster is shoddy. For example, one brief cites former Nebraska Senator Ben Nelson, who played a defining role in designing the exchanges. According to the plaintiffs, Nelson thought it was “insufficient to merely allow states the option to establish Exchanges,” hence the need for a stick. But Nelson himself stated recently that he “always believed that tax credits should be available in all fifty states regardless of who built the exchange, and the final law also reflects that belief as well.”
It’s not hard to find conservative lawmakers, like Senate majority leader Mitch McConnell, who will argue now that “the language of the law says…subsidies are only available for states that set up state exchanges.” But the idea that subsidies might be withheld was never articulated by anyone during the congressional debate, nor in the months after the law’s passage—even when states began to signal they would not operate their own exchanges. Instead, the same Republicans who endorse the lawsuit now were passing laws and making statements that affirmed the idea that subsidies would be available in all states. Statements from legislators and state officials that back up the plaintiff’s version of legislative history were made only after the implications of that ambiguous phrase in the ACA began to circulate around right-wing thought shops like the American Enterprise Institute and the Cato Institute.
If Congress did intend to use the subsidies as an incentive for states to set up their own exchanges, the fact that many state officials were clueless about the possible loss of tax credits is perplexing. None of the states “had reason to believe that choosing a federally facilitated exchange would alter so fundamental a feature of the ACA as the availability of tax credits,” reads a brief filed last week by nearly two dozen attorneys general representing red and blue states alike. “Nothing in the ACA provided clear notice of that risk, and retroactively imposing such a new condition now would upend the bargain the states thought they had struck,” it continues. The Washington Post’s Greg Sargent spoke with a number of Republican state officials involved in the implementation of the ACA who confirmed that the possibility of losing subsidies was never part of discussions about whether or not to set up state exchanges.
The court could strike a blow against the ACA without fully accepting the strained version of history offered by the challengers. But as legal scholar Linda Greenhouse describes in The New York Times, doing so would require the justices to set aside their own principles and precedents. “The court has permitted itself to be recruited into the front lines of a partisan war. Not only the Affordable Care Act but the court itself is in peril as a result,” Greenhouse writes. “To reject the government’s defense of the law, the justices would have to suspend their own settled approach to statutory interpretation as well as their often-stated view of how Congress should act toward the states.”
It’s tempting to dismiss the lawsuit as a deeply silly partisan attack, akin to the House GOP’s repeated votes for repeal. Its basis may indeed be fluff. And yet it’s entirely possible that it will be this absurd case—not sabotage by Republicans at the state level; not lawsuits challenging the law on its constitutional merits—that dooms the signature achievement of the Obama years, at an immense human cost.
By: Zoe Carpenter, The Nation, February 5, 2015
“A Juvenile GOP”: If The Party’s Aim Is To Show Americans It Is Ready To Govern, We Are Witnessing An Epic Fail
Bang. Bang. Crash. That was the sound of the Republican majority in Congress shooting itself in both feet, then tripping over them.
At a moment of heightened concern that terrorists in the Middle East might stage or inspire attacks on U.S. soil, the GOP-controlled House and Senate are unable to agree on a bill to fund the Department of Homeland Security. If the party’s aim is to show Americans it is ready to govern, we are witnessing an epic fail.
Rather than ensure the smooth operation of the agency charged with keeping the nation safe, Republicans would rather argue about a separate issue — immigration — and struggle over tactics for tilting at windmills. Meanwhile, a Feb. 27 deadline for passing an appropriations bill draws near. “I don’t believe we should shut down the Department of Homeland Security, given the threats that are obviously out there and the attacks on America,” Sen. John McCain (R-Ariz.) said Wednesday. But too few in his party are listening.
The problem is that Republican conservatives want to use the Homeland Security funding bill to reverse President Obama’s executive actions allowing millions of undocumented immigrants to stay without fear of deportation. A measure stripping out money to fund Obama’s initiatives easily passed the House, with its massive GOP majority and streamlined procedural rules. But the Senate is a different story.
It was obvious from the beginning that Majority Leader Mitch McConnell (R-Ky.) did not have the 60 votes needed to get the bill through the Senate. Nevertheless, McConnell has dutifully brought the bill up three times — and seen it rejected each time by Democrats, who quite reasonably demand a clean funding bill with no extraneous bells or whistles.
“Isn’t that the definition of insanity? Voting for the same bill over and over again?” McCain asked.
Indeed, the whole episode does seem pretty insane. House Speaker John Boehner (R-Ohio) knew the bill he sent to the Senate would be dead on arrival. McConnell knew he didn’t have the votes to pass it. And both leaders knew that if the legislation somehow made it through — perhaps when Democrats weren’t looking, or through divine intervention — there was no way Obama would ever sign it into law.
Boehner and McConnell appear to be trying to teach House Republicans a lesson in basic arithmetic. The class, however, is busy throwing spitballs.
The GOP majority in the House continues to value symbolic posturing over pragmatic action. Is this too sweeping a statement? Not if you consider what House Republicans were doing this week instead of working on a Homeland Security bill that might actually pass: Voting for the 56th time to repeal the Affordable Care Act, knowing full well that this attempt, like the previous 55, had no earthly chance of success.
GOP freshmen wanted to have their votes recorded in obeisance to what has become a Republican article of faith: Obamacare is evil incarnate. If I stipulate that the whole universe gets the message, would you guys please stop pretending that Obama is ever going to sign legislation abolishing the landmark health-care program that bears his name ?
Let’s see, what else have Republicans achieved since taking control of both chambers? Well, the House tried to pass a bill banning abortion after 20 weeks of pregnancy but had to pull the legislation at the last minute over a requirement that rape victims report their assault to police before qualifying for an exemption. Republicans did manage to pass a bill authorizing the building of the Keystone XL pipeline, but Obama promises a veto and the GOP doesn’t have the votes to override him.
If this is the pattern, it’s going to be a long couple of years.
Let me suggest a different approach. First, Republicans must cross a big hurdle: acknowledging that with Democrats able to block legislation in the Senate and Obama still resident in the White House, passing legislation will require compromise. Once you get beyond that, the rest is easy.
No, you can’t repeal Obamacare, but you might be able to make it work better for your constituents. No, you can’t undo Obama’s immigration actions without passing legislation that the Senate and the president find acceptable. No, you can’t hijack funding for a crucial government agency without suffering political damage — and ultimately folding because you don’t have the cards.
The GOP apparently hopes the display of juvenile behavior we’re witnessing will inspire voters to give the party even more power in 2016 by electing a Republican president. Good luck with that.
By: Eugene Robinson, Opinion Writer, The Washington Post, February 5, 2015
“Foot-Dragging Tedium Can Become Dangerous”: Senate Republicans Are Already Frustrated With John Boehner’s Crazy Caucus
There’s an any-port-in-a-storm quality to Speaker John Boehner’s piloting of the House, and nothing illustrates that better than Republican squabbling over whether and how to fund the Department of Homeland Security.
Why is the Department of Homeland Security about to run out of money? Because back in December, conservatives wanted to use a government funding deadline to pick a big fight with President Obama over his deportation relief policies, and rather than risk a shutdown, or wrest the till back from the hardliners, GOP leaders decided to give them whatever they could cobble together. What they came up with was a harebrained scheme to fund all government operations except for Homeland Security through the end of the fiscal year. Meanwhile, they extended DHS funding through February only, and promised to fight Obama’s deferred action programs in the context of a narrower threat to shut down the department that enforces immigration policy.
The problems with this strategy were obvious from the outset. As I observed at the time, denying DHS an appropriation wouldn’t freeze Obama’s deportation programs, because the agency implementing them is self-financing. In fact, denying DHS an appropriation wouldn’t accomplish very much at all; as a national security hub, most of its functions are considered essential, and thus exempt from the kinds of closure protocols that apply to national parks and Social Security administrative offices.
The upshot is that Republicans are threatening to infuriate DHS employees and their allies, weaken DHS functionality, and, in a losing p.r. campaign, surrender the mantle of national security back to Democrats—all unless Obama agrees to rescind his own executive actions. As muggings go, this isn’t much different than screaming, “Your money or my life!” No less an immigration hardliner than Representative Steve King understands that the plan has always amounted to capitulation.
But having promised a brawl, Boehner must now go through the motions, which look more and more contrived as prominent Republicans—particularly in the Senate—step in to admit that they will fund DHS, come what may.
This week, John Cornyn, the number two Senate Republican, told CNN “we’re not going to take any chances with the homeland.” Cornyn is showing his cards here, but he’s also putting the House’s strategy up for ridicule. Because House Republicans must proceed as promised, Cornyn et al must now pledge not to incur the mostly-imagined risk that his House counterparts are supposedly inviting. When Republicans let appropriations lapse in 2013, and DHS was just one of the many agencies ensnared in the shutdown, domestic security wasn’t the core political concern. By centering the fight around DHS alone, though, conservatives have left themselves no choice but to swallow Democratic demagoguery—their strategy is premised on the notion that Obama will relent when the threat to national security becomes too great. There are no national park closures to obscure the fact that the fight is over something called the Department of Homeland Security, and you gain no leverage by threatening to withhold funds from DHS, if you admit that withholding funds from DHS doesn’t really accomplish much.
Senate Republicans have other political concerns as well.
Dean Heller, a Republican senator from Nevada, worries that forcing a fight with Obama over immigration policy, in the context of an appropriation, invites the risk that certain members lapse into referring to affected immigrants “in a way that is offensive.” Mark Kirk of Illinois—a vulnerable incumbent—believes any “government shutdown scenario” would be “a self-inflicted political wound for Republicans.”
Where Senate Republicans would like to avoid deadline-driven fights altogether, Boehner promises to drag them into those fights at the behest of conservatives, even when he knows he can’t win. His inability to admit the obvious, while Republican senators feel unencumbered, reflects the dramatically different pressures a House speaker and a Senate majority leader face. The strategic rift thus isn’t limited to DHS, but will emerge any time Senate Republicans see political dividends in a compromise that House hardliners won’t accept.
To avoid an embarrassing, damaging lapse in highway funding, for instance, senate Republicans, including Orrin Hatch, who helms the tax writing committee, are warming to the idea of replenishing the highway trust fund by increasing the gas tax. Collapsing gas prices have made the prospect of a higher gas tax less punitive, and lent an obvious idea bipartisan support.
Naturally, Boehner can’t accept this.
At least not yet. The logic of a higher gas tax might become more appealing to him as the funding deadline nears, just as we assume the logic of extending DHS funding cleanly will overwhelm him before too long. As a template for addressing pressing national business, taking symbolic stands like these is more tedious than dangerous. But foot-dragging tedium can become dangerous when the pressing business is increasing the debt limit or responding to unanticipated crises.
By: Brian Beutler, The New Republic, January 14, 2015
“Don’t Call Us; We’ll Call You”: When The Far-Right Isn’t Far-Right Enough
For about four decades, far-right members of Congress have enjoyed a special group separate from the Republican mainstream. It’s called the Republican Study Committee and it’s always been home to the House’s most rigid ideologues and reactionary voices. The faction even releases its own budget plan, and in recent years, has deemed Paul Ryan’s blueprint as far too moderate.
The group has even offered something of a gauge for the party’s overall direction – the larger the RSC’s membership, the more obvious it was that House Republicans had been radicalized.
Now, however, some far-right Republicans have decided some of their brethren just aren’t far-right enough. Politico reported yesterday afternoon:
More than a dozen of the House’s most conservative lawmakers will splinter from the decades-old Republican Study Committee to form a new organization designed to push the GOP caucus to the right.
The currently unnamed group will be led by Reps. Jim Jordan of Ohio and Raúl Labrador of Idaho, sources involved with the planning said, and will probably include 30 or more Republicans – many of them among the most vocal critics of GOP leadership.
Jordan, it’s worth noting, is the former chairman of the Republican Study Committee. In other words, he’s leaving his own group to form an even-more-conservative entity.
At last count, the RSC listed 173 members – that’s more than two-thirds of the entire House Republican conference – while this new faction had 37 conservative lawmakers at their inaugural meeting earlier this week.
In an amazing twist, National Journal added that this group will be “invitation-only.” For those who may not be familiar with these Capitol Hill membership groups, ideological caucuses usually encourage lawmakers to join. Indeed, the whole point is to grow in the hopes of wielding more influence.
But for these far-right Republicans, the message seems to be, “Don’t call us; we’ll call you.”
Of course, all of this helps bolster the larger point: in the wake of a successful election cycle, Republican divisions are a genuine problem.
As the Republican Study Committee breakup shows – on the heels of the failed revolt against Speaker Boehner last week – some of the schisms are within House Republicans. At the same time, as Brian Beutler noted overnight, some of the divisions are also between the Senate GOP and the House GOP: they’re already on very different tracks on issues related to immigration, Homeland Security funding, and even a possible gas-tax hike.
Politico added this morning, “More often than not, House and Senate Republicans seem like they come from different parties, if not different planets.”
With a bruising 2015 just getting underway, Republicans are heading to a two-day retreat in Hershey, Pennsylvania, to see if they can get in sync on their policy priorities – but more important, their expectations.
“It’s time to air the differences, see how big they are and hopefully find the common ground,” said Sen. Shelley Moore Capito (R-W.Va.), who served in the House for 14 years. “There’s no downside to it. It’s kind of the peak and then things disintegrate afterwards. This will be the moment of unity.”
Well, maybe.
For what it’s worth, I think it’s best not to overstate the nature of the intra-party schisms. For all intents and purposes, there are only a small handful of actual Republican moderates left on Capitol Hill – and by historical standards, they’re really not especially “moderate” – and the arguments within the party aren’t especially substantive. Rather, the fight is over tone, tactics, and strategy. The overwhelming majority of congressional Republicans want roughly the same thing; they just disagree over how to get there and whether certain destinations are realistic.
But as we’re seeing, those disagreements obviously matter, and as members sit down for a collective chat this week, the tensions are likely to fester.
By: Steve Benen, The Maddow Blog, January 14, 2015
“Whose Security?”: The GOP Is Playing Games With The Department Of Homeland Security’s Funding In Order To Placate Its Extremists
The Republicans are railing against President Barack Obama for not having a high level U.S. official marching in solidarity with the French this past weekend. OK, that was a mistake on Obama’s part, but this from the Republican crowd that was so anti-France it wanted to change the name of “French fries” in the House of Representatives cafeteria to “Freedom fries”? This from the crowd who will vote tomorrow to approve a Homeland Security Bill totaling $39.7 billion only if it guts our immigration system and refuses to fund the Dream Act, deporting hundreds of thousands of children as well as parents? This from the Republicans who refused to act for a year and a half on a bipartisan Senate bill on immigration that passed with over two-thirds of the vote?
Does Speaker John Boehner really want to put in jeopardy the funding for Homeland Security, especially after the attacks in France and the raised threat level? I doubt it. But the speaker needs to throw his sizable right-wing caucus a bone and let them vote to defund Obama’s immigration plans. He then prays that the Senate saves him, doesn’t pass this absurd piece of legislation, so then they can end up passing a clean bill funding Homeland Security before the end of February when funding runs out. Or if the president is forced to veto the bill, he figures that somehow some fig leaf can be created to allow him to basically bring up a clean funding bill.
This strategy, negotiated with the extremist members of the House of Representatives, was lunacy in December; it is akin to a Kamikaze mission for Republicans now.
In fact, it is a double whammy. It convinces voters that Republicans are the anti-Hispanic and anti-immigrant party, and that they are more than willing to sacrifice our nation’s security to prove how intolerant they are as a party.
My guess is that the reason Boehner wants a vote on Wednesday is to get it out of the way, to give the extremists their say and then avoid a last minute crisis over Homeland Security funding. One day of a “shutdown” of those critical agencies is one day too many.
It will be interesting to see how many of these strategic blunders the Republicans make over the course of the next two years. The House, of course, can pass whatever it wants, but if the GOP puts forth bills as unrealistic and unhelpful as this effort, it will certainly pay the price at the ballot box. It will be their own job security that will be put in peril.
By: Peter Fenn, U. S. News and World Report, January 13, 2015
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