“Interpreting A Statute Requires Reading All Of It”: Challenge To Affordable Care Act Hinges On 4 Words In Isolation, Not The Full Law
When the Supreme Court hears oral arguments in King vs. Burwell, all eyes will be on Chief Justice John G. Roberts Jr., to try to figure out which way he’s leaning. After all, this case is the latest challenge to the Affordable Care Act, and the last time the law was before the high court, Roberts was the deciding vote in favor of the government. There’s one very good reason to think the chief justice will rule for the government again: He’s too good a lawyer to do otherwise.
King is all about the meaning of the Affordable Care Act, specifically, whether the law makes tax credits to low- and middle-income Americans available to all individuals who qualify based on income, or only to those who live in states with state-run healthcare exchanges. The plaintiffs argue that tax credits aren’t available to individuals who purchase their insurance on exchanges run by the federal government. But it’s difficult to imagine a legal mind like Roberts’ agreeing with an argument as weak as the one the plaintiffs have offered.
Interpreting a statute requires reading it carefully — all of it. You can’t just look at a few words in isolation. As Justice Anthony M. Kennedy wrote in 2006 (in an opinion that Roberts joined), “Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.”
When you look at the entire law, it’s clear that tax credits should be available on all exchanges, both state and federal. The statute defines who qualifies for a tax credit based on income level (not state of residence), and it also makes clear that federal exchanges are the functional equivalent of state-run exchanges by requiring that states set up exchanges, but allowing the federal government to set up “such exchange(s)” in their stead if they elect not to.
To now argue otherwise, the plaintiffs in this case rely on just four words in the law — “established by the State” — that appear in the formula for calculating the amount of the credit (not in the provision defining which individuals qualify for it). But a careful reading of the statute shows that those four words are there to make clear that the relevant exchange for calculating the amount of the credit is the exchange in the state where the individual purchased his or her insurance (state-run or not).
This problem is fatal to the plaintiffs’ argument, as the chief justice should surely recognize. But there are many other problems with their argument, as has become increasingly clear in the run-up to oral argument. Most significant, the plaintiffs have long maintained that Congress intentionally limited tax credits to encourage states to set up their own exchanges. The members of Congress who led the passage of the law have always said otherwise. As a number of the chairs of the committees that crafted the Affordable Care Act wrote last year, “None of us contemplated that the bill as enacted could be misconstrued to limit financial help only to people in states opting to directly run health insurance marketplaces.”
Indeed, the evidence against the plaintiffs’ case on this point is so strong that in their most recent filing with the Supreme Court, they argue that it is “irrelevant whether Congress subjectively intended” to limit the tax credits. The plaintiffs may hope that these holes in their legal argument don’t matter. But these points should matter to the chief justice and the rest of the court.
There’s already been a great deal of speculation about why Roberts might rule for the government. Some pundits and court watchers have pointed out that a ruling for the plaintiffs in this patently partisan attempt to gut the Affordable Care Act might impair the legitimacy of the court. Others in the legal and business communities have noted that a ruling against the government would result in significant chaos and disruption to insurance markets in the affected states because the tax credits are necessary for the law’s other market reforms to work properly.
These points are both right. But if the chief justice votes for the government, as he should, the reason may be far simpler: He’s too good a lawyer to do otherwise.
By: Brianne J. Gorod, Appellate Counsel at the Constitutional Accountability Center, was an author of the brief filed on behalf of some members of Congress and state legislators in King vs. Burwell. She wrote this for the Los Angeles Times; The National Memo, March 2, 2015
“Dark Money And Our Looming Oligarchy”: At Some Point Soon, Untraceable ‘Dark Money’ Will Likely Overtake The System
There is something obscene in looking at the raw numbers, is there not? More than $500 million being spent on House races, and north of $300 million on Senate contests. A half-billion dollars! In the House! Where, as of yesterday, the Cook Political Report was counting a mere 17 contests as toss-ups, with 19 others as vaguely competitive. [This paragraph originally said $300 billion, which was incorrect.]
But the gross (double entendre intended) amounts aren’t the money story of this campaign. The money story of this campaign is that undisclosed money is starting to overtake the system and overtake our politics, and that at the heart of this corruption sits a lie peddled to us by the Supreme Court when it handed down the Citizens United decision. Whether it did so naively or cynically, I honestly do not know. But let’s just say that if it was naïve, it was almost too naïve to believe, Steve.
Here’s the situation. Outside spending—that is, the spending not by candidates’ own committees—may possibly surpass total candidate spending, at least in the competitive races, for the first time. And of that outside spending, an increasing amount is the category they call “dark” money, which is money whose sources and donors don’t have to be disclosed. I mean, don’t have to be disclosed. At all. That’s because these aren’t SuperPACs, which at least do have to disclose their donor lists, but are 501c4 “social welfare” (!) groups that don’t have to file anything with the Federal Elections Commission.
You’ve heard a lot about how bad SuperPACs are, and they are, but they’re not even the main problem these days. Most SuperPAC money has to be disclosed. But social welfare money does not. This recent study by the Brennan Center tells the tale. It totaled up the outside money being spent in the nine most competitive Senate races and found that 33 percent of these outside dollars weren’t subject to disclosure requirements. This includes the aforementioned social welfare organizations along with trade associations, the 501c6’s, like the U.S. Chamber of Commerce, which is one of 2014’s biggest spenders, possibly spending more this cycle than it did even in the presidential year of 2012.
A further 23 percent is subject only to partial disclosure. So more than half of this outside money is now spread around behind either partial or total secrecy. That percentage is assuredly going to grow. Almost all of the Koch Brothers’ money—they earlier announced a goal of spending $300 million on these elections, just $100 million less than they spent in the presidential year of 2012—is dark, and if they succeed, others will surely follow their example.
Oh yes, there are Democratic dark money groups too. Interestingly, the League of Conservation Voters is a big player here. But overall there isn’t as much Democratic dark money coursing around out there. For example, in the nine key Senate races, GOP dark money tops Democratic dark money in eight of nine of them (Louisiana is the exception), and in many cases not by two-to-one but three, six, 10, 12 to one. The disparities are highest in Kentucky and Georgia—not coincidentally, the two races considered most of the year to be the best chances for Democratic pickups, and therefore the two races where someone deemed it vital that the most unaccountable money possible be used to finance attack ads.
Okay. So what’s this mean? Well, it means this. Under the quaint old corrupt system, at least you and I could in theory learn the names of nearly every donor to a candidate or committee. And yes, there were 501c4’s then, and c6’s, but they simply didn’t spend much money on electoral politics back then. Karl Rove and others figured out that there’s nothing stopping a c4 from doing almost pure electoral work (even though the law says it’s not supposed to be its “primary purpose”), and from there it proliferated, because they knew the IRS couldn’t enforce it. (And they went after the IRS, claiming to be victims of Lois Lerner, just to make sure.) And so it’s come to pass that people whose names you and I will never have a chance to know donate vastly more amounts of cash.
Of course, someone knows them: the candidates. If and when Iowa Republican Joni Ernst (roughly $7 million in dark money so far) and David Perdue in Georgia (a little more than Ernst) make it to the United States Senate, we can be sure they’ll remember who wrote the checks.
And now, to the Supreme Court. Anthony Kennedy wrote the majority opinion, which opened the sluices to corporate money. But as you might recall, Kennedy insisted that there should be no problem with this. Why? Because there would be no more secret money: “With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters. Shareholders can determine whether their corporation’s political speech advances the corporation’s interest in making profits, and citizens can see whether elected officials are ‘in the pocket’ of so-called moneyed interests.”
Kennedy describes a good-government Valhalla here, where campaigns and committees get a check in the mail and instantly scan it and send it along to the FEC, and bam, Bob’s your uncle, it’s there for the whole world to see. Of course, few citizens are going to go poring through FEC tables, but at least they’d be there for timely public review for reporters. That would be…tolerable, maybe.
But that is not remotely where things are headed. One of our parties is against full disclosure. They used to be for it, the Republicans did. But then they saw which way the post-Citizens United wind was blowing and became anti-disclosure. McConnell, the little Satan on his party’s shoulder on these matters, made the switch in 2012.
So that’s what this election marks: The routinization, in all contested races, of undisclosed money coming to dominate these campaigns, and the clear majority of it on the corporate, pro-Republican side. And yep, it can get worse.
By: Michael Tomasky, The Daily Beast, October 22, 2014
“The Larger Context Of Restrictions On Voting”: Making Voting As Difficult And Cumbersome As Possible For The Wrong Kind Of People
Yesterday the Supreme Court issued an order overruling an appeals court decision about a series of voting restrictions passed last year by the state of North Carolina, which will allow the restrictions to remain in place for this year’s election, until the case is ultimately heard by the Court. And in a happy coincidence, on the very same day, the Government Accountability Office released a report finding that voter ID requirements reduce turnout among minorities and young people, precisely those more-Democratic voting groups the requirements are meant to hinder. There’s a context in which to view the battle over voter restrictions that goes beyond whether Republicans are a bunch of meanies, and it has to do with the things parties can change easily and the things they can’t.
I’ll explain exactly what I mean in a moment, but first, the law at issue was passed just weeks after the Supreme Court’s conservative majority gutted the Voting Rights Act, allowing North Carolina and other states to change their voting laws without the Justice Department preclearance that had been required since the 1960s. The N.C. law was basically a grab-bag of everything the Republican legislature and governor could come up with to make voting more difficult and inconvenient, particularly for those groups more likely to vote for Democrats. It included an ID requirement, of course, but also shortened the early voting period, eliminated “pre-registration” (under which 16 and 17-year-olds who would be 18 by election day could register before their birthdays), repealed same-day registration, and mandated that any voter who cast a ballot at the wrong precinct would have their vote tossed in the trash. Every provision was aimed directly at minority voters, young voters, or both.
As I’ve argued before, these kinds of restrictions are almost certainly all going to be upheld by the Supreme Court, because Anthony Kennedy, for all his pleasing evolution on gay rights, is firmly in the conservative camp when it comes to voting rights. That means there will be five votes in favor of almost any hurdle to voting that a GOP-controlled state can devise.
Making voting as difficult and cumbersome as possible for the wrong kind of people is a longstanding conservative project, but it has taken on a particular urgency for the right in recent years, which helps explain why 22 states have passed voting restrictions just since 2010 (and why stuff like this keeps happening). Republicans are doing it because they can, but also because they believe they must.
Both parties approach every election with a set of advantages and disadvantages, some of which are open to change in the short term and some of which aren’t. The last couple of presidential elections, the Democrats had a more capable candidate than the Republicans did; that could be reversed next time or the time after that. The Democrats have policy positions that are on the whole significantly more popular than those of the Republicans, particularly on things like the minimum wage, taxes, and Social Security. While it would be possible for the GOP to change its positions on those issues, it’s a slow process (as they’re now seeing on gay rights), and sometimes it’s impossible.
On the other hand, Republicans have a geographic advantage we’ve discussed before, with their voters spread more efficiently throughout the country, enabling them to keep a grip on a House majority even when more Americans vote for Democratic congressional candidates, as they did in 2012. Their dominance in rural states helps them stay competitive in the undemocratic Senate, where 38 million Californians elect two Democrats, and 600,000 Wyomingers counter with their two Republicans.
There isn’t much Democrats can do about that weight sitting in the right side of the scale, but they have their own structural advantage in the fact that their coalition is a diverse one, including some of the fastest-growing segments of the population, while the Republicans are stuck with a constituency fated to shrink as a proportion of the population. In other words, the GOP’s essential disadvantages lie in the interplay between what they believe and who they are.
One way to make up for those disadvantages is by making changes to the rules to tilt things a little bit back in your favor. Making it harder for some of the other side’s constituencies to vote won’t transform elections in and of itself—and it will often spur a reaction from Democrats as they redouble their GOTV efforts—but it can give that boost of a point or two that in the right circumstances can turn defeat into victory.
Republicans, of course, claim that all these voting restrictions have no partisan intent whatsoever—that they’re just about stopping fraud and maintaining the integrity of the system. Not a single person in either party genuinely believes that’s true (even if Republicans do believe that Democrats try to steal every election, they know that things like ID requirements and shortening early voting don’t touch the biggest locus of actual voter fraud, which is absentee ballots). If it didn’t help Republicans overcome their disadvantages, at least on the margins, you can bet they wouldn’t be pursuing so many voting restrictions with such fervor.
By: Paul Waldman, Contributing Editor, The American Prospect, October 9, 2014
“Slicked With Oil And Littered With Banana Peels”: A ‘Narrow’ Decision From The Narrow-Minded
Relax. This is not a slippery slope.
So Justices Samuel Alito writing for the majority and Anthony Kennedy writing in concurrence, take pains to assure us in the wake of the Supreme Court’s latest disastrous decision. The same august tribunal that gutted the Voting Rights Act and opened the doors for unlimited money from unknown sources to flood the political arena now strikes its latest blow against reason and individual rights.
By the 5-4 margin that has become an all-too-familiar hallmark of a sharply divided court in sharply divided times, justices ruled Monday that “closely held” corporations (i.e., those more than half owned by five people or fewer) may refuse, out of “sincerely held” religious beliefs, to provide certain contraceptive options to female employees as part of their health-care package. The lead plaintiff was Hobby Lobby, a chain of arts and crafts stores based in Oklahoma and owned by the Green family, whose Christian faith compels them to pay employees well above minimum wage, play religious music in their stores, close on Sundays and donate a portion of their profits to charity.
Unfortunately for their employees’ reproductive options, that faith also compels them to object to four contraceptive measures (two IUDs, two “morning-after” pills) that they equate with abortion. Most gynecologists will tell you that’s a false equation, but Alito said that wasn’t the point.
Rather, the point was whether Hobby Lobby was sincere in its mistaken belief. That it was, the court decided, meant that the Affordable Care Act provision requiring Hobby Lobby to provide the disputed contraceptive measures violated the 1993 Religious Freedom Restoration Act, which prevents government from doing anything that “burdens” the free exercise of religion.
Apparently we now have greater solicitude for the feelings of corporate “persons” than for the health of actual persons. This ruling places women’s reproductive options at the discretion of their employers, which is awful enough. But it has troubling implications beyond that.
Not to worry, writes Alito, this ruling is “very specific.” Not to fret, concurs Kennedy, this is not a ruling of “breadth and sweep.” Let no one be mollified by these assurances.
Under the court’s logic, after all, it’s difficult to see why a corporation owned by a family of devout Jehovah’s Witnesses can’t deny blood transfusions to its workers. Or why one owned by conservative Muslims can’t deny employment to women. Or why one owned by evangelical Christians can’t deny service to gay men and lesbians.
This is not just hypothetical. In the last decade, we’ve seen Christian pharmacists claim faith as a reason for refusing to fill — and in some cases, confiscating — contraceptive prescriptions. We’ve seen Muslim cabbies use the same “logic” in declining to serve passengers carrying alcohol.
What is the difference between that outrageous behavior and Hobby Lobby’s? By what reasoning is the one protected, but the others are not? It is telling that Alito and Kennedy are virtually silent on this question.
Apparently, it’s a narrow ruling because they say it’s a narrow ruling. Apparently, we are simply to trust them on that. But even if you could take them at their word, this would be a frightening decision, the imposition of religion masquerading as freedom of religion. And the thing is: You can’t take them at their word.
So here we stand: a corporate “person” celebrating a dubious victory as millions of actual persons wonder if they’ll have birth control tomorrow. Or be denied a prescription, a job, a wedding cake.
Not a slippery slope? They’re right. This is a San Francisco sidewalk coated with ice, slicked with oil and littered with banana peels. God help us.
And look out below.
By: Leonard Pitts, Columnist forThe Miami Herald; The National Memo, July 2, 2014
“What’s Next?”: Yes, Some Corporations Can Pray — And You’ll All Pay
In its decision Monday in the Hobby Lobby case, the conservative Supreme Court majority that upheld corporations’ religious objections to birth control spends an inordinate amount of time defending itself from the reasoning and wrath of Justice Ruth Bader Ginsburg’s dissent.
Justice Samuel Alito, whose name is on the decision, alludes no fewer than 24 times to the “principal dissent,” which Ginsburg wrote for the four-member minority. Plainly, he felt Ginsburg’s powerful intellect breathing down his neck as he tried to find a path to upholding the Hobby Lobby parties’ attack on women’s rights without expanding corporate “personhood” too much.
He failed. Ginsburg concisely labels Alito’s ruling one of “startling breadth,” pointing out all the doors it opens to religious claims by business owners trumping the rights of their employees. She also observes that the majority’s answer to allowing business owners to opt out of covering their employees’ legitimate health needs is that “the general public can pick up the tab.”
In other words, the decision gives business owners the right to weasel out of their legal obligations by sticking you and me with the bill.
The Hobby Lobby case, as we reported earlier, has been percolating for months as yet another corporate challenge to the Affordable Care Act. It was brought originally on behalf of the pious owners of that privately held crafts chain, along with other private businesses. They asserted that their religious convictions were trampled by the Affordable Care Act’s mandate that medium and large employers cover contraceptives for their female employees without cost sharing—that is, without co-pays and deductibles.
The businesses pointed to a 1993 federal law, the Religious Freedom Restoration Act, which prohibits the government from imposing a “substantial burden” on a person’s exercise of religion, even in a generally enforced law. The court majority ruled that the law effectively pre-empts the contraceptive mandate in the ACA.
Eric Posner of the University of Chicago law school contends that, to the extent the majority relied on the RFRA, “Alito’s legal argument is stronger than Ginsburg’s.” But the law itself, he says, “is pretty dumb.”
Alito maintains that his decision is narrow, applying only to contraceptives, and only to “closely-held” companies — that is, not to publicly traded corporations.
Ginsburg doesn’t buy it. She asks how the ruling can be differentiated from those in which business owners pose religious objections to granting insurance coverage for “blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia … and pills coated with gelatin (certain Muslims, Jews and Hindus); and vaccinations (Christian Scientists, among others).” She concludes, “the court … has ventured into a minefield.”
Indeed, Alito himself acknowledges that “other coverage requirements, such as immunizations … may involve different arguments about the least restrictive means of providing them” — that is, exempting the employer, and letting government step in.
To a great extent, the decision turns on whether a business is a “person.” This is the same minefield the court seeded in its infamous Citizens United case in 2010, when it held that campaign finance laws limiting corporate contributions violated corporations’ free-speech rights. The detonation of those mines has laid waste to the electoral process, turning it into a playground for corporate interests. (More of a playground, anyway.)
Here the court’s majority rules that a privately held company is, in effect, a “person” that can express religious convictions. Alito sugarcoats that finding, acknowledging that corporate personhood is a “fiction,” but one designed to “provide protection for human beings.”
Ginsburg also picks that assertion clean. “The exercise of religion is characteristic of natural persons, not artificial legal entities,” she writes, quoting retired Justice John Paul Stevens as having observed in the Citizens United case that corporations “have no consciences, no beliefs, no feelings, no thoughts, no desires.”
Today’s decision invests them with all the consciences, beliefs, thoughts, and desires of characters from Tolstoy. And that’s a lot.
Alito and Justice Anthony Kennedy, in a separate concurrence, argue that the federal government has already offered an accommodation to nonprofit organizations that object to the contraception mandate — they can cede the responsibility for the coverage to their insurers, who cover their own expenses via a rebate on a federal tax. They ask: Why not extend that break to closely held companies?
(That’s how the general public would end up subsidizing the religious discrimination practiced by Hobby Lobby’s owners.)
What Kennedy and Alito seem to miss is that those nonprofit groups didn’t gain the exemption because they were nonprofit, but because their exclusive purpose was religious, not commercial. “The court forgets that religious organizations exist to serve a community of believers,” Ginsburg writes. “For-profit corporations do not fit that bill.”
It will be said that Monday’s decision walked a fine line, giving the Hobby Lobby owners what they sought without opening the floodgates to religious objections to a wide range of laws and regulations.
The court has signaled that it’s open as never before to claims by private businesses for exemptions from laws that apply to the rest of us, based on religious beliefs that can’t be objectively verified. And if they win, we’ll pay. Ginsburg’s question is apt: What’s next?
By: Michael Hiltzik, Columnist, The Los Angeles Times: Published in The National Memo, June 30, 2014
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