“GOP Bad Faith Legal Mischief”: Democrats Have Every Reason To Save Republicans From An Obamacare “Bloodletting”
Sometime this month, possibly as early as Monday morning, the Supreme Court will issue its ruling in King v. Burwell. If the Court ignores both the text and purpose of the Affordable Care Act, and rules for the challengers, millions of the law’s beneficiaries in 34 states will quickly lose their insurance subsidies and be forced off their health plans. The ensuing chaos would be the consequence not just of the ruling itself, but also of the Republican Party’s expected unwillingness to pass a one-sentence bill clarifying that Obamacare subsidies are available in every state, whether or not each state established its own health insurance exchange.
When King, and similar cases, were first conceived, they quickly became vessels of hope for conservatives, who recognized how difficult and punishing it would be to hobble or eliminate Obamacare through the legislative process. What many of them have come to recognize in the subsequent years is that farming out the job to the judiciary can’t spare them from the subsequent political cost: As decision day approaches, more and more of these conservatives are acknowledging candidly—and typically anonymously—that they will suffer badly if the Supreme Court does the very thing they’ve asked the Supreme Court to do.
“The most likely option is that Congress is unable to pass a fix,” an anonymous Republican Hill staffer told Joel Gehrke of the conservative National Review—a magazine that has beseeched the Court to void the subsidies. “Either Republicans won’t be able to settle on a fix or the president will veto whatever we do come up with. At that point, it will be up to the governors to pass their own laws deeming the national exchange a state exchange. That is the path of least resistance.”
Gehrke looks at the cross-pressures Republicans would face after a ruling for King and wonders whether they “could be in for a bloodletting.” Though they can’t admit it publicly, the promise of a bloodletting—compounded by the fact that every vulnerable Republican senator in cycle next year represents an affected state—is precisely why so many Republicans privately hope the Court will uphold the subsidies.
If the conventional wisdom which took shape after oral arguments—and to which I subscribe—is correct, the government will win, and this painful exercise in bad faith legal mischief will come to nothing. But if the challengers win, and a bloodletting ensues, Democrats won’t be able to stand back while Republicans absorb the political damage. Bloodletting or no, Obamacare will be crippled in most states. It could easily remain crippled indefinitely. Its fate will turn on the question of whether the political consequences for Republicans resemble the consequences of a government shutdown or collision with the debt limit. But either way Democrats will have to play an active role in bringing about a resolution.
The best-case scenario for Democrats is a public outcry so severe and sustained that Republicans cave, and agree to restore the subsidies with a clean fix.
Republicans have tacitly acknowledged that they won’t be able to sit on their hands while state insurance markets collapse. They have introduced legislation in both the House and Senate that would restore subsidies, but only for existing beneficiaries, and only on conditions Democrats could never accept, like the repeal of the ACA’s individual mandate.
You can interpret these offers in two ways. The first, as Greg Sargent of The Washington Post has noted, is that these bills are designed to be vetoed, allowing Republicans to blame an uncompromising Obama for perpetuating the crisis. But they could also serve as bases for a compromise, or surrender. If the public responds to a ruling for King the way they’ve responded to other GOP-instigated crises, Republicans would have to scale back their demands and eventually agree to reinstate the subsidies, perhaps for a modest price.
Two different forces will push in that direction. Even if sprinkled liberally with poison pills, and even if its proximate purpose is to invite a veto, Republican-sponsored legislation to partially reinstate ACA subsidies probably can’t pass. Democrats aren’t going to vote for an ersatz fix and neither will many rank-and-file conservative members of Congress. “As soon as the messaging is out there saying, ‘Look, a half-a-sentence fix saves millions of people from either losing their coverage or having massive spikes,’ we as a party won’t be able to sustain that pressure very long — certainly not through the August recess,” another Republican aide tells Gehrke.
But that doesn’t mean Democrats will win a standoff outright. Though their case for a clean fix will be compelling, they will also be highly motivated to reinstate the subsidies immediately, even if it means Republicans get to pocket unreciprocated concessions. Those can’t include structural damage to the core of the law, but could include eliminating things like the medical device tax and the employer mandate.
Real danger arises if, per Gehrke’s other source, an adverse King ruling registers somewhere below a government shutdown on the political Richter scale, inflicting damage on the GOP but not enough to make them seek a solution in earnest. Against the backdrop of a paralyzed Congress, Obamacare would begin to unravel in dozens of states, and would continue to do so until at least 2017. A ruling for the challengers would boomerang violently on Republicans, but Democrats have every reason in the world to want them spared from it.
By: Brian Beutler, Senior Editor, The New Republic, June 8, 2015
“Vitter’s Mind-Boggling Obamacare Crusade”: Cutting Benefits For Congressional Staffers Could Have Real Consequences
For those who oppose President Barack Obama’s health care reform law, there’s a lot to campaign against. Many of the arguments in the health care debate arise from differences in philosophy and opinion about the future of health care in this country. For example, there’s the ongoing discussion over the appropriate size of the federal government’s role in the provision of health insurance.
Some arguments, however, are mind boggling. One Republican senator’s recent campaign seems to fall in this category.
For about two years, Sen. David Vitter of Louisiana has been on a mission to eliminate the employer subsidy that members of Congress and their staffs receive to buy their health insurance. Thanks to a provision added on to the Affordable Care Act during its consideration, members of Congress and their staffs are required, for the most part, to get their health insurance from the exchanges established by the new law. According to Politico, a ruling by the White House allowed members and staffers to retain the employer health insurance subsidy that they had been receiving before the changes in the Affordable Care Act took effect. Vitter objects to the ruling and claims that it effectively gives Congress an “exemption” from the law.
Although Vitter’s effort may be a good talking point, from a policy perspective, it doesn’t make sense. The senator is clearly approaching the issue from the standpoint of good government and making sure that Congress adheres to the laws it passes for the rest of the nation. However, if he is successful, his efforts will not make government better and they will not make Obamacare better or prove a weakness in the law. All he will accomplish is putting a thorn in the side of the staffers who work hard to make Congress run.
For most staffers, the loss of the subsidy would result in a substantial pay cut. As a former congressional staffer myself, I know that’s a cut many won’t be able to afford. Further, the White House’s actions didn’t give congressional staff a new benefit, nor did it “exempt” them from the Affordable Care Act. They are still required to purchase their insurance from the exchange. Additionally, as Sen. Lindsey Graham, R-S.C., pointed out to Politico, Congressional staff “aren’t getting anything that any government workers don’t get.” Or anyone else who works for a large employer, for that matter. Under the health care law, employees of large employers still receive health care subsidized by their employer. Members of Congress and their staff should be treated the same way.
It’s also possible that the senator’s efforts, if successful, could hurt Congress. Faced with a significant reduction in benefits, many staff would probably choose to leave the hill and recruiting for their replacements would become more difficult. Less effective Congressional staff ultimately means a less effective Congress and, at the end of the day, that only hurts the country further. Although it may seem a bit intangible for people outside of Washington, Vitter’s drive to eliminate health care subsidies for members of Congress and their staffers has real consequences for the people who serve the institution and their families. The crusade should be dropped. There are more important things to do than take health care away from government workers.
By: Cary Gibson, Government Relations Consultant, Prime Policy Group; Thomas Jefferson Street Blog, U. S. News and World Report, May 15, 2015
“Can’t Stop, Won’t Stop”: GOP Will Never Stop Coming For Obamacare
Obamacare turned 5 on Monday, a birthday achieved despite sustained and repeated efforts to smother the law in its cradle.
The law has taken some hits, including a 2012 Supreme Court decision that buckled the knees of the bill’s backers but seemed to make the Affordable Care Act the settled law of the land.
Now the Supreme Court has again taken up another challenge to the law.
King v. Burwell hinges on whether or not four words buried deep in the text of the law contain the seeds of Obamacare’s destruction by eliminating tax subsidies for people living in states that declined to set up their own insurance exchanges.
But even if they lose again at the court, conservatives say that they will continue to try to undo the law through the courts.
Michael Cannon, a health-policy expert at the Cato Institute, said the most promising challenge to the ACA comes from the state of Maine, which, after the Roberts court ruled in 2012 that the federal government was limited in how much it could compel states to expand Medicaid, sued to roll back its existing Medicaid coverage.
Last year, a federal appeals court ruled against the state, but Gov. Paul LePage has appealed to the Supreme Court, even as Maine’s attorney general has refused to represent the state in its challenge of the law.
Other remaining challenges include Sissel v. U.S. Department of Health and Human Services, which argues the ACA is unconstitutional because it violated the Constitution’s origination clause that states spending bills must originate in the House, not the Senate.
“They are both kind of long shots,” acknowledged Cannon, noting that “the Supreme Court has never struck anything down on origination grounds” and that the House likely lacks standing in its lawsuit against the administration.
If the administration loses King v. Burwell, most health-policy experts predict that it will create a “death spiral” as low-income beneficiaries lose their subsidies in states that did not set up their own exchanges, and insurers are forced to raise rates. But conservatives say they will not delay in kneeing the law into the grave by filing lawsuits in states that set up their own exchanges.
Because many states rushed to do so, conservatives say they expect that governors and their health departments may have violated their state constitutions, and so even residents of those states that believed they were immune from the Burwell decision could face a loss of subsidies as well.
If the Supreme Court decides in favor of the government in King, conservative legal scholars said that what they decide to do in the future to tear down the law depends upon precisely the way in which the judgment is rendered. Halbig v. Burwell mirrors the King case in many respects, but other cases could still go forward, in particular one in Indiana in which several dozen school districts have argued that the employer mandate to provide health insurance puts too much of a burden on state and local governments.
Smaller challenges to the law, meanwhile, continue to mount. Little Sisters of the Poor sued to exempt themselves from the contraceptive mandate. If successful, the suit would allow more organizations to opt out than the Hobby Lobby decision did.
Another challenge, brought by the Goldwater Institute of Arizona, takes aim at the Independent Payment Advisory Board, which was designed to permit the Executive Branch to limit Medicare payments. Even some of the law’s liberal supporters, like former Vermont Gov. Howard Dean, have said that the board should be eliminated or rethought.
Meanwhile, conservative legal scholars say they continue to pore over the text of the law in the hopes that they will find some other legal weaknesses that were not readily apparent. The King case, after all, hinges on four words in the text that were discovered by a legal scholar months after the law was passed.
“This law is so complicated that even those who have read it don’t understand the depths of it,” said John R. Graham, a senior fellow at the conservative National Center for Policy Analysis. “Every time we look at it, we find something else to take to a judge.”
And such lawsuits, he added, help galvanize opposition to the bill years after it has passed.
“They keep the energy up, keep Obamacare on the front pages, keep hope alive.”
Which is necessary, because many conservatives still hope that the law will collapse under its own weight.
“They have really reached the limit of sign-ups. Enrollment is flattening as people see more and more how expensive the coverage is, how high the deductibles are, all the hoops they have to jump through, and they realize it is just not very attractive insurance,” said Grace-Marie Turner of the Galen Institute. She said that many states would be able to opt out of some of the law’s provisions in 2017, and find their own alternatives.
“There is going to be huge momentum going forward to make changes to this law,” Turner said. “I could go on forever about how damaging this law has been to people’s lives. It has to be changed.”
By: David Freedlander, The Daily Beast, March 25, 2015
“America, We’re In Big Trouble!”: A ‘Governing Majority’ That Doesn’t Know How To Govern
Incoming Senate Majority Leader Mitch McConnell (R-Ky.) said the other day that he hopes the Republican-led Congress can prove to the electorate that his party can be a responsible “governing majority.” And on the surface, that’s a perfectly worthwhile goal.
But it’s been quite a few years since GOP policymakers actually tried to govern effectively, and there’s reason to believe the party no longer remembers how. This week, for example, Republican lawmakers will get right to work, pushing the Keystone oil pipeline and a measure to redefine a full-time worker under the Affordable Care Act. Jonathan Weisman had a good piece on the latter.
The House will take up legislation on Wednesday, the first major bill of the 114th Congress, that would change the definition of a full-time worker under the health law from one who works 30 hours a week to one who works 40 hours. A vote is scheduled for Thursday.
Weisman’s report did a nice job noting that even conservatives seem to realize this is a bad idea, with National Review’s Yuval Levin arguing over the weekend that the legislation “seems likely to be worse than doing nothing.”
Republicans, at some level, must understand this. Indeed, they pushed this exact same idea 11 months ago – in a bill they called the “Save American Workers Act” – and it was deemed ridiculous at the time.
An analysis of the bill, released Tuesday by the nonpartisan Congressional Budget Office and Joint Committee on Taxation, found that it would cause 1 million people to lose their employer-based insurance coverage. The report projected that more than 500,000 of them would end up getting coverage through Medicaid, the Children’s Health Care Program or the Obamacare exchanges. The rest, CBO and JCT said, would become uninsured.
The legislation would also lower the amount the federal government collects in penalties from businesses who don’t abide by the employer mandate. As a result, the report found, the deficit would go up by $74 billion over 10 years.
Jonathan Cohn explained a while back, “The Congressional Budget Office just taught the Republican Party a lesson. Governing is hard…. [T]hat’s the reality Obamacare’s critics are never willing to confront. They’re great at attacking Obamacare. But they’re lousy at coming up with alternatives that look better by comparison. There’s a reason for that. The downsides of Obamacare are real, but, in many cases, they make possible the upsides. Take away the former and the latter go away, too.”
Faced with this knowledge, the new, massive House Republican majority has effectively declared, “Well, let’s just pass it anyway.”
And what about Keystone? I’ll dig into this in more detail when the vote draws closer, but for now, I’m reminded of President Obama’s comments at his year-end press conference a few weeks ago:
“At issue in Keystone is not American oil. It is Canadian oil that is drawn out of tar sands in Canada. That oil currently is being shipped out through rail or trucks, and it would save Canadian oil companies and the Canadian oil industry an enormous amount of money if they could simply pipe it all the way through the United States down to the Gulf. Once that oil gets to the Gulf, it is then entering into the world market, and it would be sold all around the world.
“So there’s no – I won’t say ‘no’ – there is very little impact, nominal impact, on U.S. gas prices – what the average American consumer cares about – by having this pipeline come through. And sometimes the way this gets sold is, ‘Let’s get this oil and it’s going to come here.’ And the implication is, is that’s going to lower gas prices here in the United States. It’s not. There’s a global oil market. It’s very good for Canadian oil companies and it’s good for the Canadian oil industry, but it’s not going to be a huge benefit to U.S. consumers. It’s not even going to be a nominal benefit to U.S. consumers.
“Now, the construction of the pipeline itself will create probably a couple thousand jobs. Those are temporary jobs until the construction actually happens. There’s probably some additional jobs that can be created in the refining process down in the Gulf. Those aren’t completely insignificant – it’s just like any other project. But when you consider what we could be doing if we were rebuilding our roads and bridges around the country – something that Congress could authorize – we could probably create hundreds of thousands of jobs, or a million jobs. So if that’s the argument, there are a lot more direct ways to create well-paying Americans construction jobs.”
Again, the Republican Congress knows all of this. They know gas prices have already plummeted and that Keystone won’t push them any lower. They know that the project would create a few dozen permanent U.S. jobs. They know this is all about Canadian oil.
But this new “governing majority,” eager to prove how capable they are, have once again effectively declared, “Let’s pass it anyway” – whether it actually makes sense or not.
Republican lawmakers have had months – and by some measures, years – to come up with a policy agenda they’d implement once they controlled all of Congress. This, alas, is what they’ve come up with.
By: Steve Benen, The Maddow Blog, January 6, 2014
“When Will They Ever Learn?”: Republicans Finally File Lawsuit Against Obama – And Stand To Gain Almost Nothing
Back in June, House Republicans announced, with deep regret yet great fanfare, that they were going to sue Barack Obama over his tyrannical usurpation of power. The suit was never actually filed; two lawyers the House had hired ended up quitting, and it looked as if it would fade away.
Then this week Republicans announced that they had found another lawyer to take the case, George Washington University law professor Jonathan Turley, who says he’s a liberal but has become an intense critic of the Obama administration. Just four days later, the lawsuit has finally been filed:
House Republicans filed a long-threatened lawsuit Friday against the Obama administration over unilateral actions on the health care law that they say are abuses of the president’s executive authority.
The lawsuit — filed against the secretaries of the Health and Human Services and Treasury Departments — focuses on two crucial aspects of the way the administration has put the Affordable Care Act into effect.
The suit accuses the Obama administration of unlawfully postponing a requirement that larger employers offer health coverage to their full-time employees or pay penalties. (Larger companies are defined as those with 50 or more employees.)
In July 2013, the administration deferred that requirement until 2015. Seven months later,the administration announced a further delay, until 2016, for employers with 50 to 99 employees.
The suit also challenges what it says is President Obama‘s unlawful giveaway of roughly $175 billion to insurance companies under the law. According to the Congressional Budget Office, the administration will pay that amount to the companies over the next 10 years, though the funds have not been appropriated by Congress. The lawsuit argues that it is an unlawful transfer of funds.
Call me cynical, but I can’t help but think that the newfound urgency to move ahead with the suit has something to do with President Obama’s immigration order. If conservative Republicans aren’t satisfied with whatever confrontation their leaders manage to create with Obama over immigration, John Boehner can say, “Don’t forget, we’re suing him!”
But what do Republicans get if they win this suit? Not much more than a symbolic victory. The actual complaints in the suit were always strange — they’re suing Obama for delaying the employer mandate, a provision they despise. If they won, he’d be forced to speed up implementation of the mandate, even as Republicans are pressing to eliminate it altogether. And by the time the suit winds its way through the courts, the issue will probably be moot. The mandate for employers with over 100 workers goes into effect in January (though they are only required to cover 70 percent of their employees, and almost all companies of that size already provided coverage even before the law was passed). And the mandate for the mid-size companies goes into effect in a year. By the time the case is heard by a high court, the remedy it’s seeking will probably have already taken place.
As for the other of the suit’s complaints, on cost-sharing subsidies, if Republicans are successful in killing them it would mean that poor people would have to pay more in copays and deductibles. But unlike the subsidies in three dozen states that are at issue in the King v. Burwell lawsuit, which the Supreme Court recently agreed to hear, this provision isn’t critical to the law’s basic functioning. So apart from the satisfaction some Republicans might receive from making life harder for the working poor, even if they win this lawsuit they won’t have dealt the ACA a serious blow.
Legal experts who have looked at this suit haven’t found much merit in it, particularly on the claim about the employer mandate. Federal agencies frequently delay the implementation of far-reaching regulations while practical problems are worked out. But even if they prevail, all Republicans stand to gain is the ability to say that they beat Barack Obama in court. Which may be more than nothing, but it isn’t much more than that.
By: Paul Waldman, Contributing Editor, The American Prospect; The Plum Line, The Washington Post, November 21, 2014
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