“The Supreme Court At Stake”: Overturning Obamacare Would Change The Nature Of The Supreme Court
In the first Affordable Care Act case three years ago, the Supreme Court had to decide whether Congress had the power, under the Commerce Clause or some other source of authority, to require individuals to buy health insurance. It was a question that went directly to the structure of American government and the allocation of power within the federal system.
The court very nearly got the answer wrong with an exceedingly narrow reading of Congress’s commerce power. As everyone remembers, Chief Justice John G. Roberts Jr., himself a member of the anti-Commerce Clause five, saved the day by declaring that the penalty for not complying with the individual mandate was actually a tax, properly imposed under Congress’s tax power.
I thought the court was seriously misguided in denying Congress the power under the Commerce Clause to intervene in a sector of the economy that accounts for more than 17 percent of the gross national product. But even I have to concede that the debate over structure has deep roots in the country’s history and a legitimate claim on the Supreme Court’s attention. People will be debating it as long as the flag waves.
But the new Affordable Care Act case, King v. Burwell, to be argued four weeks from now, is different, a case of statutory, not constitutional, interpretation. 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.
At the invitation of a group of people determined to render the Affordable Care Act unworkable (the nominal plaintiffs are four Virginia residents who can’t afford health insurance but who want to be declared ineligible for the federal tax subsidies that would make insurance affordable for them), the justices have agreed to decide whether the statute as written in fact refutes one of the several titles that Congress gave it: “Quality, Affordable Health Care for All Americans.”
If the Supreme Court agrees with the challengers, more than seven million people who bought their insurance in the 34 states where the federal government set up the marketplaces, known as exchanges, will lose their tax subsidies. The market for affordable individual health insurance will collapse in the face of shrinking numbers of insured people and skyrocketing premiums, the very “death spiral” that the Affordable Care Act was designed to prevent.
It seems counterintuitive to describe a statutory case as having implications as profound as a constitutional one, but this one does. It hasn’t received the attention it deserves, probably because the dispute over phraseology that the case purports to present strikes many people as trivial or, at least, fixable if the court gives the wrong answer. Actually, it’s neither. (Has anyone noticed that the House of Representatives voted on Tuesday for the 56th time to repeal the law?)
The precise statutory issue is the validity of the Internal Revenue Service rule that makes the tax subsidies available to those who qualify by virtue of their income, regardless of whether the federal government or a state set up the exchange on which the insurance was bought. The challengers’ argument that the rule is invalid depends on the significance of two sub-clauses of the act that refer to “an exchange established by a state,” seemingly to the exclusion of the federally established exchanges.
But other parts of the complex and interlocking description of how the subsidies work suggest no such limitation. They point strongly in the opposite direction. For example, if a state chooses the option not to set up its own exchange, an option 34 states have exercised, the law requires the United States Department of Health and Human Services to “establish and operate such exchange within the state.” (Justice Antonin Scalia loves to quote dictionaries, and the government’s brief obliges him by quoting the definition of “such” from Black’s Law Dictionary, a standard legal reference: “that or those, having just been mentioned.”) The government argues that in this exercise of “cooperative federalism,” the federal government simply acts as the state’s surrogate; functionally, the federal exchange “is an exchange established by the state.” The law’s other relevant sections support that interpretation. For example, one section provides that any “applicable taxpayer,” defined by income, will be eligible for the subsidy, making no reference to where the taxpayer purchased the insurance.
I could go on about the intricacies of the statute, but the intricacies aren’t my point. Statutory interpretation is something the Supreme Court does all the time, week in and week out, term after term. And while the justices have irreconcilable differences over how to interpret the Constitution, they actually all agree on how to interpret statutory text. (They do disagree on such matters as the legitimacy of using legislative history, or on what weight to give a law’s ostensible purpose; I’m referring here to how they actually read a statute’s words.)
Every justice subscribes to the notion that statutory language has to be understood in context. Justice Scalia said it from the bench just last month, during an argument about the proper interpretation of the federal Fair Housing Act. “When we look at a provision of law, we look at the entire provision of law, including later amendments,” Justice Scalia said. “We try to make sense of the law as a whole.” (Justice Scalia was addressing a lawyer for the state of Texas, who was arguing for a very narrow reading of the Fair Housing Act. The justice’s skepticism toward the state’s statutory argument has been, in my opinion, widely misinterpreted to mean that Justice Scalia will rule for those seeking to preserve the law’s current broad meaning. I believe, rather, that Justice Scalia will accept the broad statutory reading and then go on to find that the Fair Housing Act so interpreted is unconstitutional. That important case is Texas Department of Housing and Community Affairs v. the Inclusive Communities Project.)
Across the ideological spectrum, the court’s opinions are filled with comments like Justice Scalia’s. Justice Clarence Thomas wrote in a 1997 opinion that in a statutory case, courts have to look at “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”
Chief Justice John G. Roberts Jr., arguing for contextual interpretation in a 2009 opinion, observed that “the sun may be a star, but ‘starry sky’ does not refer to a bright summer day.”
Justice Anthony M. Kennedy wrote in a 2006 opinion that an interpretation of a single statutory provision “is persuasive only to the extent one scrutinizes the provision without the illumination of the rest of the statute.”
These examples all come from a brief filed on the government’s behalf by a group of law professors who are specialists in statutory interpretation, administrative law or constitutional law. One is Charles Fried, a law professor at Harvard who served as solicitor general during the second Reagan administration. (Another signer of this brief is my Yale colleague, William N. Eskridge Jr., one of the country’s leading authorities on statutory interpretation.)
Readers of this column may recall my expression of shock back in November when the court agreed to hear King v. Burwell. A three-judge panel of the federal appeals court in Richmond, Va., had unanimously rejected the challenge to the law, and the plaintiffs’ appeal didn’t meet the normal criteria for Supreme Court review. A defeat for the government — for the public at large, in my opinion — seemed all but inevitable.
While I’m still plenty disturbed by the court’s action, I’m disturbed as well by the defeatism that pervades the progressive community. To people who care about this case and who want the Affordable Care Act to survive, I have a bit of advice: Before you give up, read the briefs. (Most, although not all, are available on the website of the American Bar Association. ) Having read them this week, I’m beginning to think for the first time that the government may actually prevail.
The challengers have submitted a bunch of me-too arguments from the usual ideological suspects that offer various versions of the narrative concocted to validate the acontextual reading of the law that eliminates subsidies on the federal exchanges. That narrative depicts a highly implausible scenario in which the states — which under the Constitution couldn’t actually be compelled to set up their own exchanges — were given a powerful incentive: Set up your exchange or, if you exercise your choice to default to the feds, your citizens will lose their right to the tax subsidies that will enable them to afford insurance.
The problem for the challengers is that the statute itself nowhere says that, and no one in a position of power appears to have believed at the time that the law would do any such thing. In recent weeks, supporters of the law have had a great deal of fun digging up old statements and video clips demonstrating the contemporaneous belief of prominent Republicans that the subsidies would be available to everyone. The website Talking Points Memo posted one such revelation the other day about Representative Paul Ryan, who at the time was the ranking Republican on the House Budget Committee.
Beyond what various people hoped or expected, there is a deeper issue that the challengers ignore but on which the government’s briefs are utterly persuasive. A fascinating brief filed in support of the government by an unusual coalition of 23 red-state and blue-state attorneys general (some from states with their own exchanges and others from federal-exchange states) maintains that the challengers’ narrative would “violate basic principles of cooperative federalism by surprising the states with a dramatic hidden consequence of their exchange election.”
This brief, written in the Virginia attorney general’s office, continues: “Every state engaged in extensive deliberations to select the exchange best suited to its needs. None had reason to believe that choosing a federally facilitated exchange would alter so fundamental a feature of the A.C.A. as the availability of tax credits. Nothing in the A.C.A. provided clear notice of that risk, and retroactively imposing such a new condition now would upend the bargain the states thought they had struck.”
There are abundant Supreme Court precedents that require Congress to give states “clear notice” of the consequences of the choices a federal law invites them to make. Justice Samuel A. Alito Jr. invoked that principle in a 2006 case interpreting the Individuals With Disabilities Education Act, a case cited by the 23 attorneys general. The government’s own brief, filed by Solicitor General Donald B. Verrilli Jr., observes that “it would be astonishing if Congress had buried a critically important statewide bar to the subsidies under this landmark legislation” in technical sub-clauses.
To accept the challengers’ narrative, the government’s brief asserts, “the court would have to accept that Congress adopted that scheme not in a provision giving states clear notice of the consequences of their choice, but instead by hiding it in isolated phrases.” The court should interpret the statute “to avoid the disrespect for state sovereignty” inherent in that unlikely account.
Among the two dozen other “friend of the court” briefs filed on the government’s behalf is one from a group of small business owners (significant because the earlier case against the Affordable Care Act was brought by a small-business federation) and several from the health care industry. The Catholic Health Association, representing 600 Catholic hospitals, along with Catholic Charities, filed a brief explaining the significance of the Affordable Care Act for health care providers that serve, as the Catholic hospitals do, a high proportion of low-income patients.
So will the Affordable Care Act survive its second encounter with the Roberts court? I said earlier that this case is as profound in its implications as the earlier constitutional one. The fate of the statute hung in the balance then and hangs in the balance today, but I mean more than that. This time, so does the honor of the Supreme Court. 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.
I have no doubt that the justices who cast the necessary votes to add King v. Burwell to the court’s docket were happy to help themselves to a second chance to do what they couldn’t quite pull off three years ago. To those justices, I offer the same advice I give my despairing friends: Read the briefs. If you do, and you proceed to destroy the Affordable Care Act nonetheless, you will have a great deal of explaining to do — not to me, but to history.
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“Deadly Consequences”: Public Health Experts Have Estimated How Many Americans Will Die If The Supreme Court Repeals Obamacare
When conservative American Enterprise Institute scholar Michael Strain published an article last week titled, “End Obamacare, and people could die. That’s okay.” he made two critical errors: He embedded a genuinely extreme view into a banal one, and then demanded absolution for both without defending the former.
Strain’s larger point is so uncontroversial, it barely needs reprising: Obamacare was not the final word in U.S. health policy, and if Republicans want to replace the Affordable Care Act with a different, less redistributive set of reforms, they should be able to try, without necessarily catching hell for preferring a system that tolerates marginally more avoidable deaths than Obamacare does (especially if they ply fiscal savings into different programs that alleviate poverty, or improve general welfare).
This is an unobjectionable point. Had Strain argued that the Republican presidential nominee should make an Obamacare alternative the centerpiece of his 2016 platform, nobody would have called it immoral. But the premise of his article is that conservatives (including himself, presumably) will be pleased if the Supreme Court intervenes to gut Obamacare, because it would provide Republicans the missing leverage they’ll need to impose a replacement through the political branches.
First comes god from the machine, and only then comes an Obamacare replacement.
If such a dramatic predicate carried no consequences, Strain’s cost-benefit argument would stand on its own. But when you account for the damage the Supreme Court would incur in order to provide Republicans their missing leverage, it collapses completely.
In a brief to the Supreme Court, dozens of public health scholars, along with the American Public Health Association, detail the harm the Court would create by ruling for the challengers in King vs. Burwell. Most of their analysis is rooted in the basic point that stripping insurance away from eight million people would dramatically impede their access to the health system. But they also flesh out the corollary argument that an adverse ruling would have deadly consequences, and ballpark the number of avoidable deaths such a ruling would cause.
“Researchers found that, in the first four years of the [health care reform] law in Massachusetts, for every 830 adults gaining insurance coverage there was one fewer death per year,” the brief reads. “Using the national estimate that 8.2 million people can be expected to lose health insurance in the absence of subsidies on the federal marketplace, this ratio equates to over 9,800 additional Americans dying each year. Although the specific policy context and population impacts of any policy cannot be directly extrapolated from one setting to another, the general magnitude and power of these findings from the Massachusetts study demonstrate that even when approached cautiously, these earlier findings carry enormous public health implications for withdrawing subsidies and coverage from millions of Americans.”
The Massachusetts story wouldn’t unfold precisely in reverse everywhere the subsidies disappeared, but the experience there suggests the Supreme Court ruling would have measurable mortality implications. These costs (read: deaths) couldn’t be paired against the benefits of increased spending on anti-poverty programs. These are the costs conservatives are eager to inflict on others simply to gain the leverage they need to advance an alternative that the status quo forecloses.
Responding to critics in a followup article, Strain brushes this all aside by stipulating that Republicans would never allow all this suffering. “I think it’s very likely that the congressional GOP would enact some sort of replacement if the Supreme Court strikes down Obamacare,” he writes. “They would very likely take measures to address the needs of those who lost their subsidies as a result of the Court’s action.”
To back up his suspicions, he cites a suspiciously limited set of news reports, quoting Republicans who claim to be working on such a plan—or, at least “talking about how to build consensus on a replacement.”
He does not quote from this Wall Street Journal article titled, “Republicans to Block Legislative Fix to Health-Care Law,” or this article by TPM’s Sahil Kapur titled, “Republicans Are At A Loss On What To Do If SCOTUS Nixes Obamacare Subsidies.”
For those who haven’t been keeping score all along, Republicans have spent the past several years cyclically promising and then failing to deliver an Obamacare alternative. They didn’t have an alternative prepared in 2012 when conservatives asked the Court to declare Obamacare unconstitutional. They didn’t have an alternative prepared later in the year, when Mitt Romney was their presidential candidate. They didn’t have an alternative prepared when they shut down the government as part of an ill-fated effort to defund Obamacare. They didn’t run on an Obamacare alternative in 2014. And they don’t have an Obamacare alternative prepared this week, though they’re scheduled to pass another repeal bill on Tuesday.
The story’s a little different today in that the subsidies really could disappear by fiat, harming millions of people, under GOP control of Congress. Republicans genuinely haven’t encountered a motivating force this strong in the five years since Obamacare became law. If in defiance of such a remarkable pattern, Republicans manage between now and June to come up with a workable plan or a stopgap—one that President Obama will sign—they will have filled the hole in Strain’s argument. Five months might seem like a long time in politics, but remember: It took Democrats more than twice that to pass Obamacare, and almost 10 times as long thereafter to implement it.
By: Brian Beutler, The New Republic, February 2, 2015
“Heading Towards A GOP Train Wreck”: You’re Going To See The Republican Party With All Their Clothes Off
Does anyone else see a train wreck coming for this Republican Congress?
House Ways and Means Chair Paul Ryan (R-WI) will lead along with two other top committee chairs a Republican task force to come up with a plan in case the Supreme Court strikes a blow to Obamacare later this year…
They will be tasked with working up an alternative plan if the Supreme Court invalidates tax credits in the 30-plus states that use HealthCare.gov, as well as a more general Obamacare alternative if the law were to be repealed…
Coming in the opposite direction is this train:
There is internal dissent on whether Republicans ought to come up with an alternative. One congressional GOP health aide, who was granted anonymity to speak candidly, said his party is as determined as ever to fight Obamacare, and will remain so as long as it exhibits failure. He said devising an alternative is fraught with the difficulty of crafting a new benefits structure that doesn’t look like the Affordable Care Act.
“If you want to say the further and further this gets down the road, the harder and harder it gets to repeal, that’s absolutely true,” the aide said. “As far as repeal and replace goes, the problem with replace is that if you really want people to have these new benefits, it looks a hell of a lot like the Affordable Care Act. … To make something like that work, you have to move in the direction of the ACA. You have to have a participating mechanism, you have to have a mechanism to fund it, you have to have a mechanism to fix parts of the market.”
Pushing on the accelerator of both trains is this:
Leaders in the GOP-controlled House and Senate see the court challenge as their best hope for tearing apart a law they have long opposed. If the court strikes down the subsidies, Democrats are expected to clamor for lawmakers to pass a measure correcting the language in the law to revive them. Congressional Republicans say there is no possibility they would allow that.
“No, no, no, no;” said Sen. Dan Coats (R., Indiana).
Rep. McDermott came up with a different analogy.
GOP congressional leaders haven’t coalesced around a specific replacement for the law should the court strike down the subsidies. Democrats say that makes them vulnerable, and plan to paint the GOP as responsible for taking away benefits that millions already receive.
“What you’re going to see is the Republican party with all their clothes off,” said Rep. Jim McDermott (D., Wash.) “They are standing out there naked as a jaybird and they are going to have to stand up and explain, ’Well, now we got rid of it – now what do we do?’”
It would all be humorous if it weren’t so terribly tragic.
By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, January 31, 2015
“Give Me Liberty And Give You Death”: How The GOP Embraced Being The Party Of Death
As part of their long-standing war on the Affordable Care Act, conservatives have filed a lawsuit willfully misreading the statute to deny upward of 10 million people subsidies to purchase insurance. This denial of insurance will almost certainly lead to significant amounts of preventable death and suffering.
Michael Strain of the American Enterprise Institute doesn’t deny any of this. Instead, he argues that some suffering and death may well be a price worth paying:
In a world of scarce resources, a slightly higher mortality rate is an acceptable price to pay for certain goals — including more cash for other programs, such as those that help the poor; less government coercion and more individual liberty; more health-care choice for consumers, allowing them to find plans that better fit their needs; more money for taxpayers to spend themselves; and less federal health-care spending. This opinion is not immoral. Such choices are inevitable. They are made all the time. [The Washington Post]
At a high enough level of abstraction, what Strain is saying isn’t wrong. Not all public policy can function on the basis of keeping mortality rates to the lowest possible number. Some lifesaving treatments might help so few people and cost so much that they might not be worth it. Even major infrastructure projects entail some risk of injury or death on the part of workers, but few people would argue that any such risk is unacceptable.
But the fact that the costs of the ACA might theoretically exceed the benefits doesn’t get us very far. What benefits, exactly, would accrue if millions of people were denied medical coverage because the ACA is seriously damaged or destroyed? It’s here that Strain’s argument falls apart.
One potential line against the ACA is the radical libertarian one, holding that any effort by the government to provide health care to the non-affluent represents an unacceptable level of state coercion. The problem here is that the “freedom” to die of preventable illnesses and injuries is not one the vast majority of people value very highly. A Republican Party committed to these principles would be transformed into an electoral coalition that would make Barry Goldwater’s 52 electoral votes in 1964 look robust.
Since the people responsible for the anti-ACA effort know this perfectly well, the constitutional arguments against the ACA have the advantage of not logically requiring the Supreme Court to rule the entire modern regulatory state unconstitutional. The disadvantage is that they ask the court to deny many millions of people health coverage based on liberty interests that are ludicrously trivial.
The litigants challenging the constitutionality of the ACA do not contend that the federal government cannot regulate national health-care markets. Rather, their constitutional argument boils down to an assertion that the government has the authority to assess a tax to compel people to purchase health insurance, but not a penalty. It’s pretty hard to argue that the fate of liberty in America hinges on this formal limitation on federal power.
The more successful federalist argument launched against the Affordable Care Act is similarly unattractive. Chief Justice John Roberts’ inept rewriting of the ACA’s Medicaid expansion allowed states to opt out. Republican-controlled states have eagerly rejected the large amounts of federal money on offer to insure more poor residents, something that is likely to result in the unnecessary deaths of more than 5,000 people a year.
I don’t think this particular protection of state autonomy is worth that many lives (or, indeed, a single life). But here’s the kicker: The Supreme Court’s decision does not even meaningfully protect state sovereignty. Under the court’s theory, Congress could have enacted the ACA’s Medicaid expansion by repealing the pre-existing Medicaid entirely. This, apparently, would be completely constitutional. There may be things worth 5,000 lives a year; an incoherent legal argument that doesn’t even really protect states’ rights isn’t one of them.
Strain’s arguments have similar problems. To his credit, he’s not a libertarian radical who asserts that the federal government cannot play any role in expanding health-care coverage. Rather, “universal coverage should concern itself with the catastrophic expenses associated with serious medical events that will affect a minority of the population.” The affluent, or people with good jobs, can get real medical coverage; the non-affluent might get some protection for disasters, but would have to pay through the nose for common medical procedures. Whether or not one prefers this policy alternative — which I think is far worse — there’s not a lot of meaningful protection of “freedom” going on here. The number of lives worth sacrificing so that people can choose between a few more insurance alternatives — or between the “freedom” to pay for checkups for their children or their electric bill — strikes me as “zero.”
And, of course, even this is too generous to the Republican reformers. The ACA isn’t unpopular because it provides subsidies that are too generous or because the exchanges offer insurance that cover too many things. The Republican alternatives Strain discusses will all disappear should the ACA be destroyed, because the trade-offs involved will outrage many voters. The actual Republican alternative Strain thinks it’s worth killing a lot of people for is “nothing.”
But, hey, the next upper-class Republican tax cut could be even larger, and it’s not going to be elite Republicans who pay the price. As the writer Roy Edroso puts it, Strain’s argument can be summarized as “give me liberty and give you death.” I think we can see why Republicans would prefer for the Supreme Court to do their dirty work.
By: Scott Lemieux, The Week, January 29, 2015
“The Real Mainstay Of The Future Roberts Court”: Samuel Alito, More Than Just A Face In The Conservative Crowd
In an important piece today that’s worth reading and remembering, the New York Times‘ Linda Greenhouse profiles Samuel Alito–beginning his tenth year on the Supreme Court–as the true conservative titan of the U.S. Supreme Court, more so than the unreliable Roberts and Kennedy, the erratic Scalia or the eccentric Thomas.
[T]o the political right, and to a degree that has escaped general attention, Sam Alito is much more than just a face in the conservative crowd. He’s something special. He is a rock star — and not only for his headline appearances at gatherings of the conservative Federalist Society. He is the redemption of the promise that failed a quarter-century ago, when John H. Sununu, chief of staff to President George H.W. Bush, assured worried conservatives that the president had selected a hole-in-one Supreme Court nominee: David H. Souter.
Greenhouse does well to remind us of the Souter nomination, a grievous “stab in the back” to conservatives for which the Bush family has been doing penance ever since.
In the November issue of the religious journal First Things, Prof. Michael Stokes Paulsen, describing Justice Alito as the “man of the hour,” accurately labeled him “the most consistent, solid, successful conservative on the court,” adding: “There are louder talkers, flashier stylists, wittier wits, more-poisonous pens, but no one with a more level and solid swing than Justice Samuel Alito….”
He delivers: not only in the big cases, like Hobby Lobby last June, in which he wrote the majority opinion upholding the right of a corporation’s religious owners to an exemption from the federal mandate to include contraception coverage in their employee health plan, but also in less visible moves that don’t get much public attention but that speak powerfully to the base.
It sounds discordant to suggest that a Supreme Court justice has a base, but Sam Alito has one. One of several recent hagiographic articles in the right-wing press was one in the American Spectator back in May, describing Samuel Alito as “one of the noblest men in American public life today.”
Greenhouse goes on at some length to document Alito’s ideological consistency, and also his strategic savvy, particularly in signaling which kind of cases might offer the conservative bloc on the Court to undo some key progressive precedents. Indeed, the more you read about Alito, the more you can see him becoming the fulcrum of a future Roberts Court that’s been supplemented by another conservative appointment or two from a Republican president. He’s only 64, a relative youngster in the SCOTUS context. So he’s biding his time until the Court has been turned crucially in his direction. It’s all a bit chilling.
By: Ed Kilgore, Contributing Writer, Political Animal Blog, The Washington Monthly, January 9, 2015
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