“The Limited Role Of The Courts”: Why Obamacare Probably Isn’t Doomed
The Affordable Care Act took a potentially serious hit today when the D.C. Circuit Court of Appeals struck down a rule that extended the law’s health-care subsidies to residents of the three-dozen states where the federal government runs a health insurance exchange.
But the fact that another court of appeals upheld the same rule on the same day shows that the legal issue is very thorny and will very likely be ultimately resolved by the Supreme Court. And the administration probably will come out ahead in the end.
The controversial part of the law says that the government can provide subsidies for health insurance bought on exchanges “established by [a] State.”
The argument against the administration’s rule is straightforward: if a state refuses to set up an exchange, forcing the federal government to operate it instead, then the subsidies aren’t available. That legal reading of the statute makes some sense, because Congress may have wanted to encourage states to create exchanges with the carrot of promising subsidies for the states’ residents.
But the courts are required to uphold the rule if the law is ambiguous and the administration’s position is reasonable. The Supreme Court will probably uphold the rule under that lax standard.
Here’s why. Other provisions of the statute reference an exchange “established by [a] State,” but really include the federal government. Another section of the law refers to a state-run exchange when everyone agrees that it means to include the federal government too. Also, the law actually requires every state to set up an exchange, and it refers to all the exchanges as having been established by states. So you can look at the statute as a whole and reasonably read it to extend the subsidies to residents of every state.
It also makes some difference that the section of the law cited by the rule’s opponents is a strange place for Congress to have limited the availability of subsidies, because that section states the formula for tax credits rather than core rules on who gets benefits under the Act. There also isn’t much evidence to suggest that Congress actually was intending to use the subsidies to encourage states to create exchanges.
We won’t have a final answer for a while. The parties can ask all the judges of both of the courts of appeals that issued today’s rulings to rehear the case. The administration has the better chance, because recent appointments to the court that struck down the rule tilt the court to the left. But it may be that both courts will see that Supreme Court review is inevitable and stand aside to let the Justices decide the issue.
The issue is so close and contentious that it is basically inevitable that the Supreme Court will have to resolve it. If the case goes straight to the Supreme Court, we will get a final decision within a year; otherwise, it will probably be two. My best guess is that a majority of the Justices will cite the limited role of the courts and rule for the administration and uphold the rule by the same5-to-4 majority that rejected the major constitutional challenge to the law two years ago.
By: Tom Goldstein, Appellate Advocate, best known as one of the nation’s most experienced Supreme Court practitioners, Co-founder and Publisher of SCOTUSblog; The Washington Post, July 22, 2014
“Arrogance Cloaked In Humility”: Conservative Judges Are Ganging Up To Steal Your Affordable Healthcare
Tuesday morning, two competing courts – and the conservative judges turned silent partisan assassins that dominate them – put at risk the affordable health insurance on which millions of Americans have already come to rely. These six robed men in Washington and Virginia, within about two hours, have now set up yet another US supreme court showdown on the Obamacare law Republicans on Capitol Hill just couldn’t kill, despite trying more than 50 times.
Up first: an outrageous two-to-one decision by a panel of the Court of Appeals for the DC Circuit ruling against sensible subsidies that real people need, based on what we can charitably called the “reasoning” of the two Republican nominees on the three-judge panel – the opinion was written by an appointee of George HW Bush, along with a judge nominated by his son.
They were asked to decide on the legality of the subsidies based on the precise wording of the Affordable Care Act, which provided health benefits to non-affluent Americans purchasing insurance from federal exchanges newly established under President Obama’s signature health-care law. In the literal language of the statute, subsidies are available to those purchasing insurance on “state exchanges”, although a majority of exchanges were ultimately established in the states by the federal government because of state-level Republican hostility to the law. Sensibly, the Internal Revenue Service allowed anyone who purchased from any exchange – federal or state – to qualify for the subsidies.
The Bush-appointed judges, however, aren’t much for being sensible: they ruled instead that only those who purchase insurance from the exchanges established by the states are allowed subsidies.
In what can only be described as black comedy, the majority opinion concludes with paeans to judicial restraint. (One is reminded of Lewis Carroll’s Walrus, “deeply sympathizing” with oysters prior to having “eaten every one”.) “We reach this conclusion, frankly, with reluctance,” the majority wrote, going on to concede the following:
[O]ur ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly.
But they are compelled, you see, to inflict these consequences as a means of “ensuring that policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges.” For two judges to subvert the clear purpose of the law in the name of judicial restraint is, to borrow Justice William Brennan’s phrase, arrogance cloaked as humility.
The sole dissenting judge, Harry Edwards, in his tour de force dissent, made clear his distaste for appointed judges making new law – and pointed out that the majority opinion requires the courts to ignore all the sound principles of statutory construction.
Congress clearly thought the subsidies were essential to the functioning of the exchanges, and it permitted the federal government to establish exchanges in order to prevent states from thwarting the aims of the ACA – which is to help people buy more affordable health insurance.
The majority’s reading, however, would allow hostile states to do exactly what the law was designed to prevent: by refusing to establish a state exchanges, they could effectively stop all the exchanges from working properly.
As Edwards observes, the majority’s interpretation “is implausible because it would destroy the fundamental policy structure and goals of the ACA that are apparent when the statute is read as a whole”. Plus, not a single state government – even those hostile to the law – believed that the statute demands what the majority says it does. Nobody is confused about what the law intended, but some people who oppose the ACA on political grounds are opportunistically pretending to be.
Meanwhile, just across the Potomac River, the Fourth Circuit Court of Appeals was charged with hearing a different case on the same question. But it ruled in favor of the administration, effectively siding with the first ruling’s minority opinion. That’s the sort of legal dichotomy – however strange the buzzer-beater timing – that pretty much guarantees the supreme court will ultimately answer this question for all the Americans using the federal exchanges.
That’s slim comfort for some: while most of the law narrowly survived a constitutional challenge that made it to the supreme court, the number of Americans covered by it would be much higher had the court not used bafflingly illogical reasoning to re-write the act’s Medicaid expansion in a separate ruling, which made it easier for states to opt out of that provision.
That’s all part of the Republican strategy, of course: once they lost their battle in Congress to ensure that as many non-affluent Americans as possible would continue to experience the “freedom” of going without health insurance coverage, they’ve been throwing ad hoc legal arguments at the ACA, hoping that something would stick.
Don’t be fooled that the judges who hear these challenges are not influenced by the ongoing political partisanship. As Ian Millhiser of ThinkProgress demonstrated, both judges who ruled against the subsidies today are highly partisan Republicans.
Despite Republican efforts, a study in the New England Journal of Medicine published last week found that 20m Americans are now covered by the exchanges and Medicaid expansion created by the Affordable Care Act. For all its imperfections, the law is a striking policy success and has done a great deal to address a major national problem. However, the Republican party – and most of its agents on the federal courts – would still prefer the number of Americans who benefit from the law to be much lower, as evidenced by their legal strategy.
The only good news is that this decision against the subsidies may not stand. The federal government is expected to appeal for a hearing from the entire DC circuit court, and it is unlikely that the full court would reach the same conclusion. It’s also far from clear that opponents’ argument could command a majority of the supreme court, where the cases are probably headed.
But it’s still remarkable that an argument this legally weak – and with such destructive human consequences – could command support from the majority of an appellate panel. Given the active Republican hostility to the Affordable Care Act, and the party’s utter indifference to the fate of the millions of people is helping, there’s no way to be entirely confident that the supreme court won’t use the opportunity of a new case to take something else away from the Americans who need it.
By: Scott Lemieux, The Guardian, July 22, 2014
“Good Obamacare News And The Republican Dilemma”: To The Broader Electorate, GOP Positions Just Don’t Make Sense
Today the Commonwealth Fund released a new survey on the performance of the Affordable Care Act, and it adds yet more data to the tide of good news on the Affordable Care Act. As a number of people have noted, the law’s evident success is making it increasingly hard for Republicans to sustain their argument that Obamacare is a disaster and must be immediately repealed. But it’s actually a little more complicated than that, and the ways different Republicans are changing—or not changing—their rhetoric on health care is a microcosm of the GOP’s fundamental dilemma.
But before we get to that, let’s look at what the survey showed:
The uninsured rate for people ages 19 to 64 declined from 20 percent in the July-to-September 2013 period to 15 percent in the April-to-June 2014 period. An estimated 9.5 million fewer adults were uninsured. Young men and women drove a large part of the decline: the uninsured rate for 19-to-34-year-olds declined from 28 percent to 18 percent, with an estimated 5.7 million fewer young adults uninsured. By June, 60 percent of adults with new coverage through the marketplaces or Medicaid reported they had visited a doctor or hospital or filled a prescription; of these, 62 percent said they could not have accessed or afforded this care previously.
That’s a whole heap of good news, and there are a number of interesting results buried in the details, one of which relates to how happy people are with the insurance they have. One of the arguments conservatives have made is that people who ended up changing plans will hate the new ones they had to get because of Obamacare. Well, it turns out that among people who previously had insurance but are on a new plan they got through the exchanges or Medicaid, 77 percent say they’re satisfied with their new plan, compared to only 16 percent who aren’t satisfied, and the results are almost exactly the same for those who were previously uninsured. Not only that, 74 percent of Republicans with new plans say they’re satisfied.
As more and more good news comes in about the implementation of the ACA, one would expect Republicans to talk about it a lot less, particularly given all their prior predictions of doom. And that is happening, but it’s not happening in the same way everywhere. If you’re a candidate in a swing state, it makes less and less sense, particularly as you move from your primary to the general election, to spend your time and ad dollars talking about how awful Obamacare is and pledging to vote to repeal it another 50 or 100 times should the voters send you to Washington to do the nation’s business.
But the calculation is very different if you’re running in a more conservative state, and there are lots of close Senate races in those this year, including Kentucky, Arkansas, Louisiana, and Georgia. In many of those places, the GOP candidate knows he can almost win solely with Republican votes. And for base Republicans, the emotional power of Obamacare is immune to factual refutation. No matter how much data we get demonstrating that the law is working well, those voters will still get angry every time the word is spoken. So it’s in the candidates’ interest to keep on talking about it, in the same apocalyptic terms.
This is where we get to the parallel with the larger Republican dilemma. On issue after issue, the interests of the national GOP are at odds with the interests of the bulk of the party’s officeholders, because the latter come from conservative districts or states where political calculations look very different. The national party would like to pass immigration reform to woo the growing Hispanic electorate; individual Republicans need to take a hard stance on immigration to satisfy nativist voters in their districts. The national party knows it should moderate its stance on marriage equality to keep up with evolving public opinion and appeal to young voters; individual Republicans dependent on older voters and evangelical Christians need to hold the line for “traditional” marriage. In the broadest terms, the national party knows it should modernize, but a Republican congressman who won his last general election by 40 points doesn’t see much reason to change.
The context where this dynamic will play out most visibly is, of course, in the presidential race, where Republican candidates will face two dramatically different electorates; It’s as though they’ll be running in Mississippi in the primaries, then in Ohio in the general election.
It’s possible that in the next two years things will change in health care, and the ACA will look much worse than it does today. But it seems more likely that current trends will continue, and it’ll look even better. Even if that happens, Republican candidates will still need to tell primary voters the law is an abomination that must be cast back into the fiery pits of hell from whence it came. To most voters in the broader electorate, that won’t make a lot of sense.
By: Paul Waldman, Contributing Editor, The American Prospect, July 10, 2014
“Preposterous”: The Lethal Legal Threat To Obamacare That Could Land This Week And End It All
With all the headline grabbing going on over the SCOTUS Hobby Lobby decision, many pundits have not been paying much attention to another case set for a decision from the influential D.C. Court of Appeals as soon as this week—a decision that could, realistically, finish off Obamacare once and for all.
In Halbig v. Burwell, a challenge has been lodged by opponents of the Affordable Care Act who argue that the language of the law restricts government provided subsidies to state operated exchanges only—meaning that the premium subsidies being offered to qualified purchasers in the 34 states where the federal government is operating the healthcare exchanges, are illegal under the law.
The plaintiffs in the case explain their position as follows:
“The premium-assistance tax credit provisions of the PPACA clearly, consistently, and unambiguously authorize tax credits only in states that establish a health insurance “exchange” that complies with federal law. Specifically, Section 36B authorizes tax credits for the purchase of qualifying health insurance plans only in exchanges “established by a state under Section 1311…The IRS rule, by contrast, purports to authorize tax credits in Exchanges that are neither “established by the State” nor “established . . . under Section 1311.” This it cannot do. Because the language of the PPACA speaks directly to the question at issue, the IRS has no authority to provide tax credits in federal exchanges, nor is the IRS due deference in its interpretation of the Act.”
While it is generally agreed that the Congressional leaders who wrote the PPACA intended the premiums to be available via all health insurance exchanges—whether operated by the state itself, or the federal government in the instance of states not setting up their own exchanges—the plaintiff argues that the statutory language is clear and must be interpreted and enforced per the clear statement of the law.
If you think that those attempting to undo Obamacare are making a far-fetched argument—and a ruling from the Court of Appeals holding that the premium supports were only meant for state run exchanges would, in all likelihood, irrevocably tank the law—you are not alone.
Federal District Court Judge Paul Friedman held that the plaintiff’s claims were “unpersuasive” and that, since the federally run exchanges are created and operated on behalf of the states that chose not to do so, the federally operated exchanges were intended by Congress to be treated as state operated exchanges.
However, there are more than a few highly qualified legal experts who are not so sure that Judge Friedman got this right and believe that the result could be very different in the Court of Appeals.
Jonathan Turley—the widely respected constitutional law expert, television analyst and professor of law at George Washington University Law School—notes:
“Of all the challenges since the individual mandate, this is the one that presents the most mortal threat to the act. If this case were decided on the basis of the statutory language, the advantage goes to the challengers. If the court is willing to broaden its interpretation then the administration may have an edge. It depends entirely on how the panel structures its analysis.”
Put another way, the language pretty clearly says one thing even if the intent was something else.
So, should the D.C. Court of Appeals be willing to review the legislative history—and the Friend of the Court brief submitted and signed by the Congressional leaders responsible for drafting the law which purports to inform the Court of their actual intent—or give plain meaning to what the statute actually says?
As Sahil Kapur reports , two members of the three judge panel hearing the case appeared, in oral arguments, to have considerable sympathy for the anti-Obamacare point of view.
Points out Judge A. Raymond Randolph, appointed to his seat by President George H.W. Bush, “If the legislation is just stupid, I don’t see that it’s up to the court to save it. ” Meanwhile, Judge Thomas Griffith, a George W. Bush appointee, was a bit more reserved in his take on the case but did not fail to point out that there was a special burden on the Obama Administration (defending the action) to prove that the statutory language does not mean what it appears, on its face, to mean.
Only Democratic appointee, Judge Harry T. Edwards, took the position that the plaintiff’s claims were “preposterous”.
Should we get a decision in favor of the challenger here, Obamacare bashers might wish to withhold their enthusiasm as the Obama Administration will surely exercise its right to appeal the three judge panel’s ruling to the full D.C. Court of Appeals via an en banc motion.
Given that the full D.C. Court of Appeals includes seven Democratic appointees and only four Republican appointees, a vote of the entire court could well result in a very different decision.
By: Rick Ungar, Op-Ed Contributor, Forbes, July 7, 2014
“Repurposing Of A Failed Website”: The Republicans’ Subtle Retreat From ‘Obamacare’
House Republicans held a press conference on Capitol Hill this week, at which the New York Times’ Jonathan Weisman tweeted a fascinating image – of the podium.
If you look closely, you’ll notice the sign on the podium not only refers people to a website run by the House Republican Conference, but also to a specific part of the site – gop.gov/yourstory – followed by a tagline that reads in all caps, “Our veterans deserve better.”
At first blush, that wouldn’t seem especially noteworthy, except up until very recently the gop.gov/yourstory website served a very different purpose: it was set up to collect scary stories from people who didn’t like the Affordable Care Act. Republicans launched a months-long campaign to collect anecdotal evidence from “Obamacare victims” and this website was intended to be the go-to destination for those adversely affected by the health care reform law.
But the political winds have changed direction. The crusade to find “Obamacare victims” has run its course – the evidence never materialized – and House Republicans are ready to give up on the campaign and start collecting other horror stories the party can try to exploit for partisan gain.
The repurposing of a failed website is, however, just a piece of a larger puzzle. As Juliet Eilperin and Robert Costa reported this morning, Republicans suddenly find themselves in “retreat” on health care.
Republican candidates have begun to retreat in recent weeks from their all-out assault on the Affordable Care Act in favor of a more piecemeal approach, suggesting they would preserve some aspects of the law while jettisoning others.
The changing tactics signal that the health-care law – while still unpopular with voters overall – may no longer be the lone rallying cry for Republicans seeking to defeat Democrats in this year’s midterm elections…. On the campaign trail, some Republicans and their outside allies have started talking about the health-care law in more nuanced terms than they have in the past.
Imagine that. Running on a platform of taking health care benefits from millions of people isn’t the winning strategy far-right lawmakers thought it’d be.
“The sentiment toward the Affordable Care Act is still strongly negative, but people are saying, ‘Don’t throw the baby out” with the bathwater, Glen Bolger, a partner with the GOP polling firm Public Opinion Strategies, told the Washington Post.
Remember when Republicans assumed they could simply ride a “Repeal Obamacare!” wave to electoral fortunes? That plan has been thrown out the window.
And what about the House GOP’s vaunted alternative, years in the making?
[S]enior House Republicans have decided to postpone a floor vote on their own health-reform proposal – making it less likely that a GOP alternative will be on offer before the November elections, according to lawmakers familiar with the deliberations. The delay will give them more time to work on the bill and weigh the consequences of putting a detailed policy before the voters in the fall, lawmakers said.
I suspect this isn’t more widely considered a humiliating fiasco for Republicans because most political observers simply assumed they’d fail to present their own plan, but this new “postponement” only makes the GOP’s debacle look worse.
Remember, it was exactly four months ago today that House Majority Leader Eric Cantor (R-VA.) publicly vowed, “This year, we will rally around an alternative to Obamacare and pass it on the floor of the House.”
That was Jan. 30. On May 30, Cantor’s new message is apparently, “Check back after the elections.”
Americans have only been waiting five years for the Republican alternative to the Affordable Care Act. What’s another seven months?
We know, of course, why GOP officials are struggling. As we talked about in February, Republicans could present an alternative policy that they love, but it’ll quickly be torn to shreds, make the party look foolish, and make clear that the GOP is not to be trusted with health care policy. Indeed, it would very likely scare the American mainstream to be reminded what Republicans would do if the power over the system were in their hands.
On other hand, Republicans could present a half-way credible policy, but it would have to require some regulations and public investments, which necessarily means the party’s base would find it abhorrent.
As a Republican Hill staffer recently told Sahil Kapur, every attempt to come up with a serious proposal leads to a plan that “looks a hell of a lot like the Affordable Care Act.” And so we get … nothing.
Nothing, that is, except the Democratic law, which is working quite well, Republican assurances to the contrary and repeated attempts at sabotage notwithstanding.
By: Steve Benen, The Maddow Blog, May 30, 2014
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