“An Unexploded Ordnance”: Why Republicans Secretly Hope The Supreme Court Will Save Obamacare
Because a Supreme Court decision for plaintiffs in King v. Burwell would impose extreme hardship on Affordable Care Act beneficiaries in 34 states and leave President Obama’s signature achievement in a frightening state of limbo, the law’s supporters are united in opposition to such a ruling.
And for the same reason, most analyses of the consequences of an adverse King decision have centered around the practical nightmare the ruling would create: How would states react? Congress? Insurance companies and providers? Obama himself? Will the pressure to fix the problem grow severe enough to force Republicans into surrender or to cut a reasonable deal?
These are important questions. But individually and combined, they hint at a premise that the aftermath of an adverse King ruling will exclusively effect, and be driven by, existing stakeholders. They neglect that the case itself, which will be decided in late June, is an unexploded ordnance lying in the middle of the 2016 presidential campaign field. An adverse King ruling wouldn’t just introduce familiar, crisis-driven legislative politics. It would likely become the defining issue of the Republican primary and general election. It would leave Republicans strategically and substantively divided over how to contain the fallout. And it would transform Obamacare as an issue from a modest liability for the Democratic candidate, into a factor that unifies the entire party against Republicans and the Supreme Court.
Because movement conservatives have signed on enthusiastically to the arguments of the King case, they convey the impression that the right is poised and eager for the Court to do their bidding. But activists and elected officials have different imperatives, and if you immerse yourself in the Republican Party’s posture toward this case—its public attestations, blind quotes, and conspicuous silences—a much more nuanced picture emerges. If the Court grants Republicans a “victory,” many actual Republicans won’t consider it a victory at all, and the competing concerns of anti-Obamacare zealots, industry-friendly pols, swing state incumbents, governors, and presidential candidates will break out into the open.
Democrats would obviously rather win than lose this case, and Republicans vice versa. But the truth is, as one anonymous GOP congressional health care aide conveyed to TPM’s Sahil Kapur, “In fact: King wins, they [the Obama administration and Democrats] hold a lot of high cards. And we hold what?”
That’s just one anonymous aide. But a lot of Republicans are privately “joking” that they’d be happier losing this case than winning.
Some Republican insurance commissioners take a dim view of the King case publicly. Others have communicated their squeamishness by keeping their heads down.
States on both side of the issue have filed briefs with the Supreme Court. But only six red states—Oklahoma, Alabama, Georgia, Nebraska, South Carolina, and West Virginia—joined a brief on behalf of the petitioners. Conspicuously missing are deeply conservative states like Texas, with large beneficiary pools, or any swing states under GOP control. Republican senators from many of those states—including Wisconsin, Ohio, and Florida—are in cycle in 2016.
By contrast, the following states have signed on to a brief supporting the government: Virginia, Kentucky, Massachusetts, Pennsylvania, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Mississippi, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia. Many of these are healthcare.gov states, and thus have a direct stake in the outcome.
The outcry for a fix will be broad, sustained, and lockstep, but it will meet wildly different audiences. Everyone in the GOP primary field will face extensive pressure to treat an adverse decision as an opportunity to get rid of the law altogether, but some of them will be governors or former governors who won’t be as amenable to using constituent suffering to leverage an unrealistic political goal. Republican Senate candidates from the above-mentioned Wisconsin, Ohio, and Florida, but also from Pennsylvania, New Hampshire, Illinois and elsewhere, will quickly see their political fortunes become entwined with the cause of fixing Obamacare.
As chaos grows, it will be tempting for these Republicans to claim that they and the broader right bear no culpability. Obama and Obamacare did this to them. But that message won’t wash outside of precincts where antipathy to the president already runs extremely deep. Elsewhere it’ll be drowned out by a simple but forceful argument, promulgated by people with much larger megaphones—and by the fact that everything was basically OK until five Republican-appointed Supreme Court justices intervened. Unlike Republicans, the team of organizers, lawyers, and political operatives who have banded together to save the ACA have adopted a strategy that precludes them from discussing their political contingency planning. But it stands to reason that Obama and Clinton would both lay the damage at the feet of those justices, and the party on whose behalf they had acted. The ruling would create a hydra of loyal but politically disengaged Obama supporters, consumer groups, health care providers, and other actors, none of whom will be satisfied with Republican excuse-making and inaction.
That returns us to the related question of whether Republicans would respond to the pressure by betraying the conservative base. Would they fix the law? Or perhaps patch it temporarily? Generally speaking, Republicans only break faith in this way when persisting would invite unsurvivable political damage. The various debt limit and government shutdown fights of the Obama years are the most similar precedents. But there are others. In recent years, Republicans proved they were willing to allow extended unemployment benefits to lapse, and the payroll tax holiday to expire. By contrast, they also revealed that they preferred to allow taxes on top earners to increase rather than explain to the broader public why they allowed taxes to increase up and down the income ladder.
In Arkansas, a now-retired Democrat expanded the state’s Medicaid program dramatically. The GOP-controlled legislature has since balked at multiple opportunities to rescind the expansion—even as its majority grew and a Republican moved into the governor’s mansion this year.
Which is the long way of saying that gaming this out is tough. But the question will be whether a ruling for King plaintiffs puts Republicans on their heels briefly, or whether it dominates campaign politics through November 2016.
By: Brian Beutler, The New Republic, February 9, 2015
“A Rickety Scaffold Of Fictional History”: The Sham Lawsuit That Could Eviscerate Obamacare
Republicans in the House voted on Wednesday to repeal the Affordable Care Act—for the fifty-six time. After four years these show votes have become a tedious joke. But Wednesday’s action had bleaker implications, as it was cast in the shadow of a lawsuit that could undermine the healthcare law in fatal ways.
In a few weeks the Supreme Court will hear oral arguments in King v. Burwell, which contends that the text of the ACA allows the IRS to give subsidies only to people who purchase insurance through exchanges set up by their state, and not to those who rely on the federally run marketplace. If the plaintiffs prevail, some 7 million people in the thirty-four states that have declined to set up their own exchanges would lose the tax credits that subsidize their insurance. Coverage would likely become unaffordable for many of them; without enough people in the marketplace, the law could collapse into a “death spiral.” In human terms, a group of hospitals wrote in a brief supporting the government, a ruling in favor of the plaintiffs “would be a disaster for millions of lower- and middle-income Americans…. The ranks of the uninsured will swell again, with all that portends in the way of untreated illness and overwhelming debt.”
To build their case, the plaintiffs have erected a rickety scaffold of fictional history around a single phrase in the 906-page law. The section of the law in question concerns the calculation of subsidies available to people “enrolled in through an exchange established by the State.” The plaintiffs argue that lacking an explicit reference to subsidies available to people enrolled in the federal exchanges, the text indicates that subsidies are only available in states operating their own. Furthermore, the plaintiffs argue, this was not sloppy writing but instead “reflects a specific choice by Congress” to design the subsidies as a carrot to entice states to establish their exchanges and punish them if they failed to do so.
The lack of structural integrity in the plaintiff’s case has become increasingly obvious in the past week, thanks to a sheaf of briefs filed states, lawmakers, and the healthcare industry. In sum, there’s about zero evidence for the challengers’ version of history, and what proof they do muster is shoddy. For example, one brief cites former Nebraska Senator Ben Nelson, who played a defining role in designing the exchanges. According to the plaintiffs, Nelson thought it was “insufficient to merely allow states the option to establish Exchanges,” hence the need for a stick. But Nelson himself stated recently that he “always believed that tax credits should be available in all fifty states regardless of who built the exchange, and the final law also reflects that belief as well.”
It’s not hard to find conservative lawmakers, like Senate majority leader Mitch McConnell, who will argue now that “the language of the law says…subsidies are only available for states that set up state exchanges.” But the idea that subsidies might be withheld was never articulated by anyone during the congressional debate, nor in the months after the law’s passage—even when states began to signal they would not operate their own exchanges. Instead, the same Republicans who endorse the lawsuit now were passing laws and making statements that affirmed the idea that subsidies would be available in all states. Statements from legislators and state officials that back up the plaintiff’s version of legislative history were made only after the implications of that ambiguous phrase in the ACA began to circulate around right-wing thought shops like the American Enterprise Institute and the Cato Institute.
If Congress did intend to use the subsidies as an incentive for states to set up their own exchanges, the fact that many state officials were clueless about the possible loss of tax credits is perplexing. None of the states “had reason to believe that choosing a federally facilitated exchange would alter so fundamental a feature of the ACA as the availability of tax credits,” reads a brief filed last week by nearly two dozen attorneys general representing red and blue states alike. “Nothing in the ACA provided clear notice of that risk, and retroactively imposing such a new condition now would upend the bargain the states thought they had struck,” it continues. The Washington Post’s Greg Sargent spoke with a number of Republican state officials involved in the implementation of the ACA who confirmed that the possibility of losing subsidies was never part of discussions about whether or not to set up state exchanges.
The court could strike a blow against the ACA without fully accepting the strained version of history offered by the challengers. But as legal scholar Linda Greenhouse describes in The New York Times, doing so would require the justices to set aside their own principles and precedents. “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,” Greenhouse writes. “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.”
It’s tempting to dismiss the lawsuit as a deeply silly partisan attack, akin to the House GOP’s repeated votes for repeal. Its basis may indeed be fluff. And yet it’s entirely possible that it will be this absurd case—not sabotage by Republicans at the state level; not lawsuits challenging the law on its constitutional merits—that dooms the signature achievement of the Obama years, at an immense human cost.
By: Zoe Carpenter, The Nation, February 5, 2015
“In Boehner We Trusted”: Netanyahu Throws Boehner Under The Bus; Biden To Skip Speech
There’s been scuttlebutt all week about congressional Democrats skipping Israeli Prime Minister Benjamin Netanyahu’s upcoming speech as a way to send a message about the party’s disappointment. The way in which Netanyahu and House Speaker John Boehner (R-Ohio) went behind President Obama’s back, and partnered to undermine U.S. foreign policy, does not sit well with many Dems, and even an informal boycott of his congressional address would be a big deal.
Those Democrats inclined to skip the Prime Minister’s remarks will apparently have some cover.
Vice President Joe Biden is expected not to attend a March 3 speech at the Capitol by Israeli Prime Minister Benjamin Netanyahu because he will be traveling abroad, Biden’s office confirmed to NBC News Friday.
It is not clear yet where Biden will be traveling at the time of Netanyahu’s speech, which has become controversial both because of its proximity to the Israeli elections and because it was planned by Republicans without prior consultation with the White House.
The second part is of particular interest. As the AP’s report notes, the Vice President’s office didn’t point to a specific commitment abroad on March 3, only that Biden is “expected to be traveling.” The office didn’t say where or why.
It’s hardly unreasonable to wonder if this is the diplomatic equivalent of, “I’m washing my hair – somewhere.”
Just as striking, meanwhile, is the degree to which Netanyahu’s administration appears to be throwing the Republican leadership under the bus.
A senior Israeli official suggested on Friday that Prime Minister Benjamin Netanyahu had been misled into thinking an invitation to address the U.S. Congress on Iran next month was fully supported by the Democrats. […]
“It appears that the speaker of Congress made a move, in which we trusted, but which it ultimately became clear was a one sided move and not a move by both sides,” Deputy Israeli Foreign Minister Tzachi Hanegbi told 102 FM Tel Aviv Radio on Friday.
Or to put it another way, “We totally trusted Boehner to do this the right way; he didn’t; so blame him for this fiasco.”
We talked the other day about this increasingly messy problem, and the growing debate as to who screwed up more; Boehner or Netanyahu. These latest comments from a senior Israeli official suggest the Prime Minister is eager to tilt the scales in the GOP leader’s direction.
That said, in the same interview Deputy Israeli Foreign Minister Tzachi Hanegbi suggested Netanyahu’s speech will go forward as planned. The question now is how many Democrats intend to show up.
I’ve generally been skeptical about whether a large-scale boycott would come together – a few House Dems have announced their intention to stay away, though it’s a pretty small group – but the news about Vice President Biden may very well change the entire dynamic for Democrats.
By: Steve Benen, The Maddow Blog, February 8, 2015
“A Juvenile GOP”: If The Party’s Aim Is To Show Americans It Is Ready To Govern, We Are Witnessing An Epic Fail
Bang. Bang. Crash. That was the sound of the Republican majority in Congress shooting itself in both feet, then tripping over them.
At a moment of heightened concern that terrorists in the Middle East might stage or inspire attacks on U.S. soil, the GOP-controlled House and Senate are unable to agree on a bill to fund the Department of Homeland Security. If the party’s aim is to show Americans it is ready to govern, we are witnessing an epic fail.
Rather than ensure the smooth operation of the agency charged with keeping the nation safe, Republicans would rather argue about a separate issue — immigration — and struggle over tactics for tilting at windmills. Meanwhile, a Feb. 27 deadline for passing an appropriations bill draws near. “I don’t believe we should shut down the Department of Homeland Security, given the threats that are obviously out there and the attacks on America,” Sen. John McCain (R-Ariz.) said Wednesday. But too few in his party are listening.
The problem is that Republican conservatives want to use the Homeland Security funding bill to reverse President Obama’s executive actions allowing millions of undocumented immigrants to stay without fear of deportation. A measure stripping out money to fund Obama’s initiatives easily passed the House, with its massive GOP majority and streamlined procedural rules. But the Senate is a different story.
It was obvious from the beginning that Majority Leader Mitch McConnell (R-Ky.) did not have the 60 votes needed to get the bill through the Senate. Nevertheless, McConnell has dutifully brought the bill up three times — and seen it rejected each time by Democrats, who quite reasonably demand a clean funding bill with no extraneous bells or whistles.
“Isn’t that the definition of insanity? Voting for the same bill over and over again?” McCain asked.
Indeed, the whole episode does seem pretty insane. House Speaker John Boehner (R-Ohio) knew the bill he sent to the Senate would be dead on arrival. McConnell knew he didn’t have the votes to pass it. And both leaders knew that if the legislation somehow made it through — perhaps when Democrats weren’t looking, or through divine intervention — there was no way Obama would ever sign it into law.
Boehner and McConnell appear to be trying to teach House Republicans a lesson in basic arithmetic. The class, however, is busy throwing spitballs.
The GOP majority in the House continues to value symbolic posturing over pragmatic action. Is this too sweeping a statement? Not if you consider what House Republicans were doing this week instead of working on a Homeland Security bill that might actually pass: Voting for the 56th time to repeal the Affordable Care Act, knowing full well that this attempt, like the previous 55, had no earthly chance of success.
GOP freshmen wanted to have their votes recorded in obeisance to what has become a Republican article of faith: Obamacare is evil incarnate. If I stipulate that the whole universe gets the message, would you guys please stop pretending that Obama is ever going to sign legislation abolishing the landmark health-care program that bears his name ?
Let’s see, what else have Republicans achieved since taking control of both chambers? Well, the House tried to pass a bill banning abortion after 20 weeks of pregnancy but had to pull the legislation at the last minute over a requirement that rape victims report their assault to police before qualifying for an exemption. Republicans did manage to pass a bill authorizing the building of the Keystone XL pipeline, but Obama promises a veto and the GOP doesn’t have the votes to override him.
If this is the pattern, it’s going to be a long couple of years.
Let me suggest a different approach. First, Republicans must cross a big hurdle: acknowledging that with Democrats able to block legislation in the Senate and Obama still resident in the White House, passing legislation will require compromise. Once you get beyond that, the rest is easy.
No, you can’t repeal Obamacare, but you might be able to make it work better for your constituents. No, you can’t undo Obama’s immigration actions without passing legislation that the Senate and the president find acceptable. No, you can’t hijack funding for a crucial government agency without suffering political damage — and ultimately folding because you don’t have the cards.
The GOP apparently hopes the display of juvenile behavior we’re witnessing will inspire voters to give the party even more power in 2016 by electing a Republican president. Good luck with that.
By: Eugene Robinson, Opinion Writer, The Washington Post, February 5, 2015
“Judicial Activism”: What It Will Take For SCOTUS To Buy Conservative Arguments On ACA Subsidies
A lot of the points that the New York Times‘ legal correspondent Linda Greenhouse covers today in an overview of the stakes involved in King v. Burwell have been made in various places. But pulled together as they are, you can see exactly how radical an exercise in judicial activism it would take for SCOTUS to agree with the petitioners in this case.
First of all, there’s never been a SCOTUS decision validating anything like the principles of statutory interpretation the anti-ACA camp is demanding:
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.”
That militates against the sort of literalist meaning the petitioners are asking for. But worse yet from a conservative point of view, punishing the states for exercising an option ACA clearly provided for–allowing the federal government to create purchasing exchanges for them–would violate supposedly sacred principles of federalism.
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.
Yes, “astonishing” is the right word to describe the implications of a SCOTUS action to blow up the Affordable Care Act. But not necessarily surprising.
By: Ed Kilgore, Contributing Writer, Political Animal, The Washington Monthly, February 6, 2015
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