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“The Obamacare Resistance Regroups”: Delving Even Deeper Into Denial

The 16th Amendment to the Constitution, authorizing the federal income tax, was ratified in 1913. Still, every once in a while, the news will report the arrest of some right-wing kook who has failed to pay his income tax on the grounds that it’s illegal. Also in 1913, the 17th Amendment, requiring the popular election of senators (who before then were often appointed by state legislatures) took effect. And yet many conservatives still want to repeal it — and not just kooks, or at least influential kooks and not just completely marginal and obscure kooks. And those things happened more than a century ago.

So how long will the Obamacare resistance live on? A long, long time.

Obamacare has survived when it appeared to be dead in Congress in 2009, then even more dead the next year, and then survived a Supreme Court case, a presidential election, a rollout crisis, and another Supreme Court case. National Journal’s Josh Kraushaar has lovingly tended the flickering flame of health-care repeal for years. In 2013, he predicted that barring “an unlikely fourth quarter comeback,” Congressional Democrats would soon join with Republicans to repeal the law over a presidential veto. In the wake of the King v. Burwell verdict, Kraushaar regroups with a new column laying out a path. Kraushaar refers repeatedly to the law’s “unpopularity,” which is … barely correct:

Proceeding from this shaky premise, he argues that, if they win the presidency, enough Senate Democrats might join Republicans to create a filibuster-proof supermajority:

The third group, which Sasse labels the “Replacement Caucus,” would make significant changes to the law after campaigning on a reform-oriented health care agenda in the presidential election. That’s the most tenable approach — and the fact that Sasse, a hard-line Senate conservative, is calling for something other than outright repeal is telling. (Sasse still supports repealing the law but only with a replacement plan in hand.)

If Republicans win the presidency, the political momentum — and votes for rolling back core elements of Obamacare — would be in place. In that scenario, Republicans would have won three out of four elections, and a depleted Democratic Party would be in disarray. Republicans could credibly claim a health care mandate, given how prominently the issue played in recent elections.

Kraushaar allows that these “significant changes” to Obamacare would fall short of repeal, though he does not indicate what those changes would entail. He links to a National Review column by Republican Senator Ben Sasse, which also fails to describe what changes should be implemented. The closest Sasse comes to specifying a proposal is calling for an “understandable, common-sense, patient-centric alternative.” Of course, Republicans have been urging other Republicans to come up with a common-sense, patient-centric health-care plan since the health-care debate began six years ago. They have remained stuck in the same unsolvable problem: Their actual health-care policy ideas are either all less popular than the specific policies in Obamacare, unworkable, or both. When Republicans start naming actual policy changes they would implement, they would do things like let insurance companies deny coverage to people with preexisting conditions, or stop covering popular services like maternity care. That’s why the only specific partial changes Republicans actually want to vote on simply attack the law’s financing provisions. They’re not willing to eliminate Obamacare’s benefits, but they’re happy to stop paying for them. That plan (keep the benefits, oppose the taxes) is pretty much the party’s approach to other established social insurance programs like Medicare and Social Security. If Republicans win the presidency, they may bite the bullet and repeal Obamacare because their base demands it, but they won’t have Democrats on their side and it won’t be popular.

Even farther into denial is Michael Cannon, a Cato Institute scholar who played a leading role in promoting the King v. Burwell lawsuit. The basis for that lawsuit was seizing on an errant line of text implying that tax credits would be available only for customers using state-established exchanges, ignoring many other parts of the law, as well as massive amounts of evidence before, during, and after the debate implying the opposite. For a while, Cannon, the founder of the anti-Universal Coverage club, nurtured hopes of un-insuring 6 million Americans. He finds himself in the position of a despondent young Montgomery Burns mourning the destruction of his biological weapon (“My germs, my precious germs! They never harmed a soul. They never even had a chance!”)

Cannon, unlike Burns, does not seem to be accepting defeat. His Twitter bio continues to describe him as “the man who could bring down Obamacare,” a now-moot prediction. His new column argues, “Even in defeat, King threatens Obamacare’s survival, because it exposes Obamacare as an illegitimate law.” Cannon bases this claim on the fact that he believes, or purports to believe, that Obamacare is not what the Supreme Court says it is but a chimerical, never-implemented, doomed-to-fail alternative that will live on forever in his dreams. A century from now, right-wingers will emerge from their fortified mountain compounds, clutching Cannon’s writings and claiming to be following the True Obamacare.

 

By: Jonathan Chait, Daily Intelligencer, New York Magazine, July 10, 2015

July 11, 2015 Posted by | Affordable Care Act, King v Burwell, Republicans | , , , , , , , , | 1 Comment

“Why Scalia Should Resign”: It Must Make Him Wonder If He Wishes To Be Part Of An Institution That Is Corrupting The Republic

Supreme Court Justice Antonin Scalia should resign.

That’s the thought I had while reading his acid dissents in the two headline-grabbing Supreme Court cases last week, one affirming the IRS’s interpretation of the Affordable Care Act, and the other discovering a right to same-sex marriage in the 14th Amendment.

Scalia’s considered view is that the court has usurped power from Congress in the health care law, and from the American people themselves in the marriage case.

Ultimately, on the health care case, John Roberts agreed with most of the claims of the plaintiffs, but decided to rewrite the disputed clause because, as he writes, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.” Scalia retorted that the court’s job is to pronounce the laws, not re-shape them to better fit what the court imagines the intent of the legislators to have been. Scalia writes, “the court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmaker.”

He continues:

The court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress “[a]ll legislative Powers”enumerated in the Constitution. Art. I, §1. They made Congress, not this court, responsible for both making laws and mending them. This court holds only the judicial power — the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. We must always remember, therefore, that “[o]ur task is to apply the text, not to improve upon it. [King v. Burwell]

So the court has thus transgressed the balance of powers, becoming a kind of reserve super-legislature. But his dissent on Friday against Justice Anthony Kennedy’s majority opinion legalizing same-sex marriage takes the charge much further. According to Scalia, the court has given into nonsense, and now transgresses the right of the American people themselves. “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie,” he jeers.

Scalia’s baseline assumption is that the meaning of the 14th Amendment did not change since 1868. And further that it is the prerogative of the American people, through their legislators or through constitutional amendment, to redefine marriage as an institution that includes two people regardless of their sex, a process that was well on its way. And so the Kennedy decision becomes for Scalia a “judicial putsch,” where five judges “have discovered in the 14th Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.” Instead of law, Scalia says, the court has given “pop philosophy” and “showy profundities” that are “profoundly incoherent.”

Scalia has often denounced majority holdings in extraordinarily memorable language. But what he offers in his two dissents at the end of this term are much graver charges. The ruling in King further infantilizes Congress, releasing it from its responsibility to craft laws with any precision, thus weakening the ability of the people to govern themselves through the legislature. And the marriage ruling more directly asserts a judicial supremacy over the people themselves. What Scalia is saying is that the court has corrupted the American form of government and staged a coup.

If these are anything more than rhetorical flashes, then it must make him wonder if he wishes to be a part of an institution that is this corrupted and corrupting of the republic. He may steel himself, as someone who will dutifully carry out his appointed role. But waiting for a Republican president to replace him is a guarantee of nothing. The two opinions that amount to a putsch were written by justices appointed by the two most conservative Republican presidents in living memory.

Progressives would be so giddy at his departure. So what? If the court is captured by politics, what better rebuke than to demonstrate that one justice is not so captured. Leaving the court would not relieve its members of the duty of upholding the Constitution. Let the burden and the obloquy of the putsch be on others.

 

By: Michael Brendan Dougherty, The Week, June 29, 2015

July 4, 2015 Posted by | Antonin Scalia, King v Burwell, Obergefell v Hodges | , , , , , , , | Leave a comment

“John Roberts To America; I’m In Charge Here”: A Blunt Message To Politicians To Stop Abusing The Judiciary

When, just over two years ago, right-wing superlawyer Michael Carvin filed his first lawsuit seeking to deny Affordable Care Act tax credits to millions of individuals in states with federally operated exchanges, die-hard ACA opponents saw one reason why the Supreme Court might use an isolated four-word phrase to sabotage the ACA—that all five conservative justices would vote their political gut. As decision day approached, many ACA supporters (including me) suspected that the challengers’ political appeal might only be overcome if one or two of the conservative justices—Anthony Kennedy and/or Chief Justice John Roberts—would embrace states rights–based constitutional arguments to save the law.

Last Thursday, when the Court issued its decision in the case, King v. Burwell, all these hopes and fears about the political and ideological vectors at play, specifically, with Roberts, turned out to be dead wrong. The chief justice had bigger fish to fry—personal, institutional, and policy priorities—that led him to uphold the Obama administration’s decision to make tax credits available nationwide:

  • Asserting his personal leadership of the Court, by mobilizing a 6-3 bipartisan majority, and taking the heat for writing a no-holds-barred, decisive opinion in the most politically divisive case on this year’s docket;
  • Continuing an ever more evident drive to advance the Court’s power vis-à-vis the two elected branches, as the final decider and major direction-setter on the nation’s most fought-over policy issues;
  • Sending a blunt message to conservative activists, lawyers, and politicians to stop abusing the judiciary as a handy back-door gimmick to reverse political defeats they have been unable to reverse in political arenas—in particular, to stop bringing cases designed to “undo” the ACA;
  • Sending a subtle, gratuitous, but nevertheless quite discernible piece of policy advice to Republican politicians and policy-makers, in the form of a reminder of the ACA’s Republican ancestry in Massachusetts’ 2006 Romneycare reform law, referencing that model’s conservative credentials as a way to “expand coverage” while relying on private health insurance markets.

As the litigation made its way toward the high court, ACA opponents had been upfront about their bet that conservatives on the bench shared, and would act on their animus to the president’s signature legislative accomplishment. In September 2014, after the full D.C. Circuit Court of Appeals had voted to vacate and rehear a 2-1 decision in his favor, Carvin candidly opined that raw partisan politics would drive the Supreme Court to preempt the appellate court’s consideration of the case: “I don’t know that four justices, who are needed to [grant review of the case] here . . . are going to give much of a damn about what a bunch of Obama appointees on the D.C. Circuit think.” Asked if he believed he would lose the votes of any of the five conservative justices, he smiled and said, “Oh, I don’t think so.” Carvin’s cynical take was hardly unique; some of his allies openly forecast that Roberts would feel a need to appease conservatives who excoriated him for his 2012 vote to save the ACA.

Last Thursday, Roberts dashed conservative hopes and liberal fears of a partisan political decision. To the contrary, as conservative blogger Josh Blackman ruefully explained on a Federalist Society post-mortem conference call, the decision effectively seemed to elevate the ACA into a kind of “untouchable super-statute that is beyond reach.” Blackman characterized Roberts’s message as, “This is over . . . We’re through”—meaning, we’re through hearing cases ginned up by our clever lawyer friends to precipitate judicial de facto repeal of the law. Roberts’s brush-off of these core allies was foreshadowed by remarks he made at the University of Nebraska a few days before Carvin bared his cynical partisan take on the conservative justices. Then the chief justice said he was “worried about people having [the] perception” that the Court is no less a political body than Congress or the presidency. He attributed this trend to polarization in the elected branches, saying that he did not “want that to spill over and affect us.” Though widely disregarded at the time as standard civics class pap, it now appears clear that Roberts was serious and motivated by clear-eyed concern about the Court’s stature. As he observed in his 2005 confirmation hearings, “It is a very serious threat to the independence and integrity of the courts to politicize them.” King v. Burwell posed just such an institutional threat, and it was his job as chief justice to dispel it.

But to Roberts, protecting the Court’s reputation does not mean staying above the fray, much less retreating to the sidelines. On the contrary, the decision showed how focused he is on enhancing the Court’s power, well understanding that its non-political image is, ironically, essential to its clout. His opinion reasoned that, read in the context of the overall statute and Congress’ “plan,” the four-word phrase “established by the state” on which the challengers relied was “ambiguous.” When statutes are ambiguous, long-standing black-letter law requires courts to defer to an agency’s reasonable interpretation, rather than impose an interpretation that the court considers correct. But Roberts did not take that route. Instead, he said, the Court must decide for itself what the law means, on the ground—never before asserted so categorically—that the availability of ACA tax credits is “a question of deep economic and political significance that is central to this statutory scheme.” Of course, he then held that the administration’s interpretation was the right call. Administrative law experts were quick to note that, in the words of Ohio State law professor Chris Walker, “King v. Burwell—while a critical win for the Obama Administration—is a judicial power grab over the Executive in the modern administrative state.”

Roberts’s yen to project the Court as a player on the policy question of “deep economic and political significance” posed by the case was also manifest in another theme of his opinion, understated but audacious. Not only did he note the ACA’s roots in Romneycare, but he underscored that law’s record of effectiveness in reducing the “uninsured rate in Massachusetts to 2.6%, by far the lowest in the Nation,” and then went on to observe that the ACA “adopts a version of the three key reforms that made the Massachusetts system successful” (emphasis added), including the affordablity tax credits at issue in King, as well as the “individual mandate” that Roberts upheld as a pay-or-play tax incentive in 2012 in NFIB v. Sebelius. This and other notably favorable descriptions of the ACA in Thursday’s opinion seem aimed at Republican policy-makers and politicians. His message recalls his 2012 approval of the law’s individual mandate as an optional tax incentive—preferable, he wrote, because the “taxing power does not give Congress the same degree of control over individual behavior” as a Commerce Clause–based absolute mandate.

As I wrote after the NFIB decision, Roberts took this policy argument from a 2011 D.C. Circuit opinion by fellow George W. Bush appointee Judge Brett Kavanaugh; that opinion favorably portrayed the ACA as potentially “the leading edge of a shift” to “privatize the social safety net and government assistance programs.” In these opinions, Kavanaugh and Roberts seem to be pitching a line favored in conservative policy circles prior to the recent rise of tea party-style anti-government absolutism—keep and expand the national safety net, but privatize and regulate it through incentives rather than commands. With his decisions in NFIB v. Sebelius and King v. Burwell, however, John Roberts has gone further than merely touting that big-government conservative model for safety net governance, casting the ACA as a product of that model. He has used his power to entrench it—against demands from the left for a command-and-control version of the ACA individual mandate, and against conservatives’ strategy of killing the ACA in court. This, Roberts concluded, is “the type of calamitous result that Congress plainly meant to avoid”—and which, the chief justice made crystal clear, he will be loath to permit, in this case and any other challenge the law’s opponents might cook up.

 

By: Simon Lazarus, Senior Counsel to the Constitutional Accountability Center; The New Republic, June 27, 2015

June 29, 2015 Posted by | John Roberts, King v Burwell, Republicans | , , , , , , | Leave a comment

“Antonin Scalia Defeated — By Antonin Scalia”: He Had His Own Previous Arguments Turned Against Him

Justice Antonin Scalia did not simply lose today’s key ruling on the federal health insurance subsidies for the Affordable Care Act — he had his own previous arguments turned against him.

The majority opinion issued today, written principally by Chief Justice John Roberts — whose crucial vote previously upheld Obamacare back in 2012 — illustrated the idea of the insurance subsidies being an integral part of health care reform itself.

And the absurdity of just striking out subsidies for people living in states with federally run exchanges — as Scalia and his fellow dissenters insisted had to be done under the law — was illustrated by citing… Antonin Scalia, from his earlier efforts to stamp out health care reform.

It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius, 567 […] (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) […] (“Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”).

That is, Roberts and company cited the dissent in the first major Obamacare case, from 2012, when the dissenters — Scalia being one of them — tried to say that pretty much each every single facet of the Affordable Care Act was not only wrong but unconstitutional, and that they interlocked so completely that by striking down even one of them, the entire Act would have to fall.

As a political staffer friend, who is a trained lawyer (though not currently practicing), tells me: “The problem with results-oriented jurisprudence is it makes hypocrisy easy to spot.”

The full paragraph in that original dissent is as follows:

In the absence of federal subsidies to purchasers, insurance companies will have little incentive to sell insurance on the exchanges. Under the ACA’s scheme, few, if any, individuals would want to buy individual insurance policies outside of an exchange, because federal subsidies would be unavailable outside of an exchange. Difficulty in attracting individuals outside of the exchange would in turn motivate insurers to enter exchanges, despite the exchanges’ onerous regulations. […] That system of incentives collapses if the federal subsidies are invalidated. Without the federal subsidies, individuals would lose the main incentive to purchase insurance inside the exchanges, and some insurers may be unwilling to offer insurance inside of exchanges. With fewer buyers and even fewer sellers, the exchanges would not operate as Congress intended and may not operate at all.

 

By: Eric Kleefeld, The National Memo, June 25, 2015

June 28, 2015 Posted by | Affordable Care Act, Antonin Scalia, King v Burwell | , , , , | Leave a comment

“Conservatives Lost Outright”: John Roberts, Liberal Hero; How The Chief Justice Destroyed The Conservative Case Against ObamaCare

Since ObamaCare passed in 2010, Republicans have been searching desperately for a way to destroy the law through legal trickery (or as they call it, “judicial activism”), since they don’t have the means to kill it through legislation. In 2012, with the Supreme Court decision NFIB v. Sebelius, they got a partial victory, with the court badly wounding the law’s Medicaid expansion but leaving the rest unharmed.

In the case decided on Thursday, King v. Burwell, conservatives sought to cripple the insurance markets in states that had not set up their own health care exchanges. They did this by advancing a spurious reading of the Affordable Care Act (ACA) that would forbid insurance subsidies from flowing through the federal exchange website, thus devastating the private insurance markets in those states.

This time, conservatives lost outright. Chief Justice John Roberts, joined by Justice Anthony Kennedy and the four liberals on the bench, wrote the opinion — and it delivers a stark rebuke to the conservatives who have been fumbling around for an alternative to ObamaCare since 2010. “Repeal and replace” has been their mantra, but they never even got close to uniting around an actual replacement policy. Today, Roberts shows us why: It’s impossible.

King focused on a single phrase in the ACA, “established by the State,” which, taken out of all legal and policy context, could be construed to restrict subsidies to the state exchanges only. Because the Chevron doctrine requires that, in case of ambiguous wording, the implementing agencies get to decide how to interpret a law (in this case the IRS), it was necessary to construct an alternate history of the ACA. In this version, Congress meant to restrict subsidies to the state exchanges, to coerce states into creating one.

Liberals carefully explained that no, that was a completely insane version of ObamaCare’s history. Health care policy reporters, the staffers who drafted the law, and members of Congress who voted for it all swore up and down that this had never even been seriously discussed, let alone that it was their intention. State-level politicians, who are responsible for deciding whether to create their own exchanges, reported they had never heard of such a threat. Why would Congress create a mechanism to force states to do something, and then never mention it?

Roberts’ opinion delivers total victory to the liberal case. First, he examines the statute and finds that, in fact, it is not ambiguous — the government’s interpretation is correct. He writes that, considered in context, the plaintiff’s reading of “established by the State” would make great swathes of the rest of the law totally nonsensical. The ACA clearly states that all exchanges are to provide qualified plans to qualified people, which would be impossible for the federal exchange without subsidies. Moreover, why would the law provide for a creation of a federal exchange at all, if nobody can actually use it?

Second, and more fundamentally, Roberts finds that the plaintiff’s reading of ACA is poles apart from the obvious policy intention of the law. He accurately describes ObamaCare’s three-pronged approach: guaranteed issue and community rating, requiring insurance companies to offer policies to everyone at a reasonable price; an individual mandate, so that healthy people will participate in the risk pool; and subsidies for people who can’t afford the insurance.

All three are necessary for ObamaCare to work, but the plaintiffs’ reading would eliminate two of the three prongs in states without their own exchange. Subsidies would go, and so would the individual mandate, because it doesn’t apply if people are spending more than 8 percent of their income on a policy. Roberts notes that this would likely cause an insurance death spiral in those states, as healthier people flee an increasingly expensive market, turning the ACA into a health insurance doomsday device. Indeed, just such a death spiral happened in several states before ObamaCare passed — which is partly why it included all three prongs. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” he concludes.

That brings me to the “replacement” rhetoric. Roberts’ clear account of ObamaCare’s policy mechanism, and the damage that would be done should any of its main prongs be removed, deals a body blow to the conservative health care wonks who have been trying to cook up a replacement policy for the last five years — in particular, a plan without the unpopular individual mandate. But as Roberts plainly shows, that leads straight to disaster.

It’s an implicit concession that ObamaCare is the most conservative possible policy that could get even close to universal coverage — if five years of Republican policy failure weren’t enough evidence.

 

By: Ryan Cooper, The Week, June 25, 2015

June 28, 2015 Posted by | Affordable Care Act, Conservatives, King v Burwell | , , , , , , , | 2 Comments

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