“Shocking Sloppiness Won’t Doom The Health Reforms”: Republican Politicians Will Have A Lot Of Angry People On Their Hands
How many politicians, aides, lobbyists, lawyers, insurance moguls, professional groups, and interns — both the political and medical kind — agonized over the details in the Affordable Care Act? The number is big.
But despite thousands of hands in the kitchen, the final product included four words that cast doubt on a cornerstone of the reforms — subsidies for those buying coverage on federal health insurance exchanges. Unbelievable.
Diehard foes of the reforms have weaponized those words as a means to kill the law. They argue in the Supreme Court case King v. Burwell that specifically offering subsidies for plans bought on exchanges “established by the state” means no help for those going to federal exchanges.
Since the program started, low- and middle-income Americans have been receiving tax credits for coverage on both types of exchanges. Almost everyone assumes that’s how it’s supposed to be.Take away subsidies for federal exchanges and only the sickly will join it. The economic structure underpinning guaranteed coverage will collapse as premiums charged for plans on federal exchanges soar and the healthy stay away in droves.
The plaintiffs, though they come from the right, are doing their Republican colleagues no favors. You see, when the Affordable Care Act created federal exchanges in states that had not set up their own, leaders in Republican-controlled states could noisily defy President Obama while taking few political risks. They could refuse to set up state exchanges knowing that their constituents would enjoy subsidized coverage on the federal exchanges.
Lose those subsidies and Republican politicians are going to have a lot of angry people on their hands. Some 7.5 million Americans receive subsidies on federal exchanges.
Hypocrisy now crashes over the Republicans’ wall of opposition to the Affordable Care Act. Politicians are currently rewriting the story of their obstruction of a law that they dread could come apart.
An exasperating example is Olympia Snowe, a former senator from Maine who fancies herself a moderate Republican. During the battle for the bill’s passage, she strung Obama along for months, pretending that she might provide him at least one Republican vote. (Why Obama indulged these stalling tactics… perhaps his memoirs will tell.)
Anyway, Snowe recently commented that the little words at the heart of the Supreme Court case were unintended. “Why would we have wanted to deny people subsidies?” she said. “It was not their fault if their state did not set up an exchange.”
So why did she vote against the bill? She also railed against “Obamacare” as a “government-run health care system,” not that this was the case. Until Snowe left the Senate in 2013, she worked with her party to undercut the reforms.
But get this: At the time of the bill’s writing, Snowe proposed letting Americans buy cheaper drugs from Canada. It was OK, apparently, for a foreign government to help struggling Mainers obtain health care, but not OK for their own to do so.
One expects the health reforms to survive this latest assault. The best outcome would be the Supreme Court’s confirming that the words were a mistake and that yes, subsidies for the federal health exchange are legal.
If the court says no, politicians in states relying on federal exchanges could swing into action and set up some form of state exchange. And the Obama administration would probably make it easy for them.
The bipartisan takeaway here is the appalling state of American governance. We now hear from all sides that omission of subsidies for the federal exchanges was “sloppy,” “careless,” “inadvertent,” “a drafting error.” Actually, it was inexcusable.
But let’s move on.
By: Froma Harrop, Featured Post, The National Memo, May 28, 2015
“A Big Split In The Republican Party”: Here Comes The Big Intra-GOP Fight Over Obamacare Subsidies
It’s been obvious for a while that congressional Republicans will be placed in a difficult position if SCOTUS strikes down subsidies for health insurance purchases under the Affordable Care Act in states that did not create their own exchanges. On the one hand, they’ll be blamed for failure to do something about the consequent loss of insurance and/or increases in premiums (at least in states that do nothing about it, either), when a one-sentence law confirming the original understanding virtually everyone had about the universal availability of subsidies would suffice. On the other hand, any reaction to such a SCOTUS decision that does not at least begin with an all-night kegger-and-prayer-vigil in celebration of this blow against tyranny will rile up The Base into a hate frenzy. Theoretically, GOPers could be ready with a full-fledged Obamacare Replacement bill that could be presented to the president on a take-it-or-leave-it basis, but despite having five years to come up with such a creature, that ain’t happening.
So as TPM’s Sahil Kapur explains today, Sen. Ron Johnson has introduced a bill, which the Senate GOP leadership has quietly gotten behind, that would extend the Obamacare subsidies until the end of 2017, in exchange for some key concessions to conservatives that fall vastly short of an alternative structure for health care reform.
The Senate’s top five Republican leaders have cosponsored legislation to extend until 2017 the Obamacare insurance subsidies that may be struck down by the Supreme Court this summer
The legislation, offered by Sen. Ron Johnson (R-WI), one of the most politically vulnerable Senate incumbents in 2016, would maintain the federal HealthCare.gov tax credits at stake in King v. Burwell through the end of August 2017.
The bill was unveiled this week with 29 other cosponsors, including Senate Majority Leader Mitch McConnell (R-KY) and his four top deputies, Sen. John Cornyn (R-TX), John Thune (R-SD), John Barrasso (R-WY) and Roy Blunt (R-MO). Another cosponsor is Sen. Roger Wicker (R-MS), the chairman of the conference’s electoral arm.
Such a move would seek to protect the GOP from political peril in the 2016 elections when Democrats would try to blame the party for stripping subsidies — and maybe insurance coverage — from millions of Americans in three dozen states. A defeat for the Obama administration in a King ruling would likely create havoc across insurance markets and pose a huge problem for Republicans, many of whom have been pushing the Supreme Court to nix the subsidies.
Given the certainty that this proposal will split Republicans, what are the odds Democrats would go along with this semi-“fix.”?
Democrats would probably demand a fix to make the subsidies permanently available if they go down. But they would be hard-pressed to vote down a bill to temporarily extend them if Republicans were to bring it up.
That may depend, however, on what happens to provisions Kapur calls “sweeteners” for conservatives, including elimination of Obamacare’s individual and employer mandates, and perhaps even more crucially, of the ACA’s minimum benefit requirements. Kapur seems to anticipate, and some conservative critics agree, that Republicans would cave on most of these “sweeterners” in exchange for Democrats agreeing to a temporary instead of a permanent extension of subsidies.
But you will note that the cosponsors of Johnson’s bill do not include Ted Cruz, Rand Paul or Marco Rubio, who will likely be focused on the Iowa Straw Poll at the time the decision comes down. There’s also a competing Senate bill from Ben Sasse that would instead of extending the subsidies replace them with simple tax credits for insurance purchasing that would fade away over time. And there are, according to The Hill‘s Sullivan and Ferris, several plans percolating in the House that would replace the subsidies with our without some “bridge” offering temporary relief. You can judge how much consensus there is from this remark by Republican Study Committee co-chair Bill Flores of Texas, who is one of the people working on one of the many plans:
“I’m not saying there should absolutely not be a bridge, I’m not saying there should absolutely be a bridge,” Flores said. “If we start building toward a shore, but we don’t know what that shore is, then the bridge might not work very well.”
I think we can all agree on that. And that is why despite everything you will hear from them before and after SCOTUS rules, there’s probably no group of people more avidly if silently cheering for Obama to win this case than are congressional Republicans.
By: Ed Kilgore, Contributing Writer, Political Animal Blog, The Washington Monthly, April 24, 2015
“Can’t Stop, Won’t Stop”: GOP Will Never Stop Coming For Obamacare
Obamacare turned 5 on Monday, a birthday achieved despite sustained and repeated efforts to smother the law in its cradle.
The law has taken some hits, including a 2012 Supreme Court decision that buckled the knees of the bill’s backers but seemed to make the Affordable Care Act the settled law of the land.
Now the Supreme Court has again taken up another challenge to the law.
King v. Burwell hinges on whether or not four words buried deep in the text of the law contain the seeds of Obamacare’s destruction by eliminating tax subsidies for people living in states that declined to set up their own insurance exchanges.
But even if they lose again at the court, conservatives say that they will continue to try to undo the law through the courts.
Michael Cannon, a health-policy expert at the Cato Institute, said the most promising challenge to the ACA comes from the state of Maine, which, after the Roberts court ruled in 2012 that the federal government was limited in how much it could compel states to expand Medicaid, sued to roll back its existing Medicaid coverage.
Last year, a federal appeals court ruled against the state, but Gov. Paul LePage has appealed to the Supreme Court, even as Maine’s attorney general has refused to represent the state in its challenge of the law.
Other remaining challenges include Sissel v. U.S. Department of Health and Human Services, which argues the ACA is unconstitutional because it violated the Constitution’s origination clause that states spending bills must originate in the House, not the Senate.
“They are both kind of long shots,” acknowledged Cannon, noting that “the Supreme Court has never struck anything down on origination grounds” and that the House likely lacks standing in its lawsuit against the administration.
If the administration loses King v. Burwell, most health-policy experts predict that it will create a “death spiral” as low-income beneficiaries lose their subsidies in states that did not set up their own exchanges, and insurers are forced to raise rates. But conservatives say they will not delay in kneeing the law into the grave by filing lawsuits in states that set up their own exchanges.
Because many states rushed to do so, conservatives say they expect that governors and their health departments may have violated their state constitutions, and so even residents of those states that believed they were immune from the Burwell decision could face a loss of subsidies as well.
If the Supreme Court decides in favor of the government in King, conservative legal scholars said that what they decide to do in the future to tear down the law depends upon precisely the way in which the judgment is rendered. Halbig v. Burwell mirrors the King case in many respects, but other cases could still go forward, in particular one in Indiana in which several dozen school districts have argued that the employer mandate to provide health insurance puts too much of a burden on state and local governments.
Smaller challenges to the law, meanwhile, continue to mount. Little Sisters of the Poor sued to exempt themselves from the contraceptive mandate. If successful, the suit would allow more organizations to opt out than the Hobby Lobby decision did.
Another challenge, brought by the Goldwater Institute of Arizona, takes aim at the Independent Payment Advisory Board, which was designed to permit the Executive Branch to limit Medicare payments. Even some of the law’s liberal supporters, like former Vermont Gov. Howard Dean, have said that the board should be eliminated or rethought.
Meanwhile, conservative legal scholars say they continue to pore over the text of the law in the hopes that they will find some other legal weaknesses that were not readily apparent. The King case, after all, hinges on four words in the text that were discovered by a legal scholar months after the law was passed.
“This law is so complicated that even those who have read it don’t understand the depths of it,” said John R. Graham, a senior fellow at the conservative National Center for Policy Analysis. “Every time we look at it, we find something else to take to a judge.”
And such lawsuits, he added, help galvanize opposition to the bill years after it has passed.
“They keep the energy up, keep Obamacare on the front pages, keep hope alive.”
Which is necessary, because many conservatives still hope that the law will collapse under its own weight.
“They have really reached the limit of sign-ups. Enrollment is flattening as people see more and more how expensive the coverage is, how high the deductibles are, all the hoops they have to jump through, and they realize it is just not very attractive insurance,” said Grace-Marie Turner of the Galen Institute. She said that many states would be able to opt out of some of the law’s provisions in 2017, and find their own alternatives.
“There is going to be huge momentum going forward to make changes to this law,” Turner said. “I could go on forever about how damaging this law has been to people’s lives. It has to be changed.”
By: David Freedlander, The Daily Beast, March 25, 2015
“Congress Might Step In To Fix The Problem”: How Conservative Supreme Court Justices Harmed Their Own Anti-Obamacare Cause
Wednesday’s Supreme Court oral arguments made it evident that at least some conservative justices are worried about the disruption they’ll create if they rule for the challengers in King v. Burwell and void Affordable Care Act subsidies in 34 states.
The justices and lawyers themselves didn’t dwell on humanitarian costs, but those most hostile to the law repeatedly sought to downplay the consequences of an adverse ruling.
The plaintiffs’ lawyer, Michael Carvin, argued against all logic to incredulous liberal justices that eliminating subsidies wouldn’t leave states saddled with a punishing regulatory regime. Antonin Scalia got laughed out of court (sort of) for claiming Congress might step in to fix the problem. Samuel Alito even intimated that states might step in and establish their own exchanges. The Court could even lend them several months time to do so.
“It’s not too late for a state to establish an exchange if we were to adopt Petitioners’ interpretation of the statute,” Alito said. “So going forward, there would be no harm.”
If his suggestion was designed to appeal to skeptical conservatives, like Chief Justice John Roberts, and Anthony Kennedy, he may have harmed his own cause.
Alito’s comments evoke the image of many or most of the states that opted in to federally facilitated exchanges scrambling to reverse their decisions—to keep subsidies flowing and preserve the viability of their individual insurance markets.
That would stem the disruption. But it would also underscore the anti-federalist concerns Kennedy raised during oral arguments in dramatic fashion. What’s better evidence of coercion than sending a bunch of states into a blind panic to do something they weren’t originally inclined to do?
Supporters of the challenge might argue that the source of coercion in that case would be the disappearance of unauthorized subsidies, rather than the underlying scheme in the law. Essentially that this would all be the Obama administration’s fault. But Kennedy was explicit in his admonitions that the coercion problems with the challengers interpretation of ACA run deeper than money transferred by the federal government.
“The states are being told either create your own exchange, or we’ll send your insurance market into a death spiral,” Kennedy said. “We’ll have people pay mandated taxes which will not get any credit on on the subsidies. The cost of insurance will be sky high.”
To dull the implications of Kennedy’s concerns, conservatives enlisted Oklahoma’s Attorney General, Scott Pruitt, who banged out an op-ed arguing that his own state’s experience contradicts the premise that the ACA-as-written is unconstitutionally intrusive.
“Oklahoma knew the consequences of its decision but was not coerced into cooperating with implementation of the Affordable Care Act,” Pruitt wrote.
The argument lacks credibility coming from someone who adopted his position, on the advice of conservative activists, precisely because “in states that have not established their own exchanges, the structure of the ACA will crumble.” Seeking Pruitt’s guidance on the ACA’s impositions on states is a bit like taking flight lessons from a kamikaze pilot.
But Pruitt’s point also doesn’t allay Kennedy’s substantive concerns. His interpretation of the ACA arose not from its plain text, but, again, from the input of meddling activists trying to destroy Obamacare. It doesn’t follow from the fact that Pruitt is keyed in to conservative movement strategy that the ACA provides states clear notice that its subsidies come with major strings attached. Moreover, Kennedy’s problem isn’t just with states responding to the threat, but with the threat itself. “If petitioners’ argument is correct,” Kennedy said, “this is just not a rational choice for the states to make.” In other words, even if several states continue to resist ACA implementation after an adverse ruling, there’s still a problem here, because the federal government shouldn’t be allowed to confront states with such onerous choices in the first place.
Assuming Kennedy meant what he said about coercion, he has several options, most of which augur well for the ACA. He could allow the challengers’ anti-federalist construction of the law to guide him to a better available interpretation (i.e. the government’s). He could determine that the challengers’ construction should be avoided in favor of one that isn’t unconstitutional. He could essentially rewrite it, as the Court rewrote the ACA’s Medicaid expansion, to sever the offending phrase. Or, less auspiciously, he could find for the challengers, and leave the subsidy condition on the books, anticipating that a constitutional challenge will arise as a result.
But the fact that Alito and Scalia assumed a ruling for the challengers would send political actors scrambling for a fix doesn’t advance their ends with anyone concerned about coercion. It actually just proves the point.
By: Brian Beutler, The New Republic, March 6, 2015
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