“Institutional Treason”: Boehner’s Lawsuit Is Betrayal Of Congress
Republicans have finally filed their lawsuit against the president over implementation of the Affordable Care Act. Actually, the president isn’t a respondent; the suit names the Secretary of Health and Human Services and the Treasury Secretary. It’s still a horrible idea.
Michael Lynch and Rachel Surminsky at the Monkey Cage provide one reason: The suit is likely to fail. The first issue is “standing.” To get into court, the House would have to prove that it was damaged by the way the administration carried out the ACA, and courts have consistently rejected that idea. Beyond that, it’s far from clear that the administration’s actions, including the delay of the employer mandate and cost sharing for insurance companies, were beyond the normal discretion the executive branch has to carry out laws. Just because some Republicans want to pretend that before January 2009 presidential power had been limited to pardoning Thanksgiving turkeys doesn’t mean they are right.
And if Republicans win, it would be terrible for Congress.
I’ll say it again: Speaker John Boehner and House Republicans aren’t asking for authority to be returned from the White House to Congress. They want an imperial judiciary that could trump either of the elected branches.
In a system of separated institutions sharing powers, which is what the Constitution created, all three branches do things that look a lot like legislating, but laws can trump administrative or judicial rule making. That gives Congress serious clout within the system. This lawsuit, however, is an abdication of that clout. In effect, it says that the courts, not Congress, should have the last word when there’s a dispute between branches.
Filing this lawsuit amounts to institutional treason. Boehner and House Republicans should be ashamed. The rest of us can only hope that the courts rescue them by keeping to precedent and tossing this lawsuit into the garbage.
Then, perhaps, the House could consider getting back to legislating.
By: Jonathan Bernstein, Bloomberg View, The National Memo, November 21, 2014
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“A Cardinal Reality Facing The Justices”: The Supreme Court Is Now A Death Panel
Back in March 2011, when the biggest threats facing Obamacare were the Supreme Court and the 2012 elections, I argued that the demise of the Affordable Care Act would put people’s lives in immediate danger.
At the time, the law had relatively few beneficiaries—people under 26 covered by their parents’ health plans, a small population of people with pre-existing medical conditions. But some of them had already used their new coverage to finance the kinds of life-saving treatments that would leave them in need of chronic care for the rest of their lives. Take away the health law, and most of these organ transplant recipients and other patients would have become unable to afford their medications, and some of them would die.
Since then, millions of people have gained coverage under the law, and that group of chronic care patients has grown much larger. But despite the fact that the Court upheld the law, and President Obama won reelection, the ACA isn’t out of danger.
On Friday, the Supreme Court agreed to hear a case that will determine whether the federal government can continue to subsidize private ACA coverage in states that didn’t set up their own insurance exchanges.
That case is King v. Burwell, but the issue at stake has come to be defined by a comparable case called Halbig v. Burwell.
The Fourth Circuit Court of Appeals ruled against the challengers in King, but the Supreme Court agreed to grant cert to those challengers anyhow, despite the absence of a Circuit Court split. If the five conservative Supreme Court justices are so inclined, they can void ACA subsidies for millions of beneficiaries, and cripple the insurance markets in about three dozen states.
Some of those beneficiaries will be the kinds of transplant recipients and other patients I wrote about three and a half years ago. Except today there are many more of them. Several of these patients explained the risk to their lives in an amicus brief, urging a different circuit court to reject the challenge to the subsidies, and thus to the viability of the insurance markets their lives depend on.
“Without insurance, Jennifer [Causor’s] treatments would be completely unaffordable. Her transplant cost nearly $280,000. She takes three anti-rejection drugs, one of which has a sticker price of $2,400 per month…. Should she become uninsured, Jennifer would face bankruptcy and even death.”
You can read the whole brief below. Conservatives are brimming with excitement over the Court’s decision to hear the challenge. Should the five conservatives rule that the text of the law doesn’t provide for federal subsidies in states that didn’t set up their own exchanges, they’ll place the onus on Congress or state governments to address the consequences for constituents who lose their benefits. The contested text could be fixed with a comically simple technical corrections bill, which Democrats would happily support. If Republicans were to sit on their hands, or use the ensuing chaos as leverage to extract unrelated concessions, it will cost people their lives. That is a cardinal reality facing justices, and the people soliciting their conservative activism.
There’s an ironic post-script to this article. The Supreme Court is likely to resolve this case with a 5-4 decision, one way or another. Either a single conservative will side with the Court’s four liberals as in 2012, and leave the law unscathed, or the five conservatives will align to void the subsidies.
Under the circumstances, supporters of the law might be nervous about the potential loss of a liberal justice. Ruth Bader Ginsburg’s health and advanced age make many liberals very uneasy, especially now that Obama’s ability to fill Supreme Court vacancies has come into doubt. But for the purposes of King, this issue is immaterial.
If Ginsburg’s seat were to become vacant, then the fate of the law would remain in the hands of a conservative swing justice. A 4-4 split effectively upholds the lower court’s ruling—and since the Fourth Circuit upheld the subsidies, the subsidies would stand. If the Fourth Circuit had ruled the other way, her health would be much more material.
When I mentioned this admittedly morbid but nevertheless important curiosity on Twitter, a large number of dimwitted (or in some cases persistently dishonest) conservatives flooded my mentions column in outrage. Most of them missed the meaning altogether, and accused me of wishing death upon a conservative Supreme Court justice. But even the ones who didn’t managed to contain their enthusiasm over the possibility of millions of people losing insurance for a moment, to reprimand me for being so cavalier about people’s lives.
By: Brian Beutler, The New Republic, November 7, 2014
“Don’t Be Fooled, GOP Not Trying To Help Hourly Workers”: The Next Attempt By Republicans To Mislead On The Affordable Care Act
If you were paying close attention, you would have heard a new phrase being repeated by Republicans, particularly Mitch McConnell, over the last few days: “restore the 40-hour workweek.” You may have said, “Wait, is the workweek not 40 hours anymore?” If you had no idea what McConnell is talking about—and I’m pretty sure he’s hoping very few people do—it sounds like he’s advocating some kind of pro-worker initiative. And indeed, that’s how he and John Boehner put it in their op-ed in today’s Wall Street Journal, saying that one of the top items on their agenda is to “restore the traditional 40-hour definition of full-time employment, removing an arbitrary and destructive government barrier to more hours and better pay created by the Affordable Care Act of 2010.”
Now we’re getting closer. The government, with that damn Obamacare, is cutting your hours and pay! As Boehner put it, we have to “restore the 40-hour workweek for American workers that was undone by Obamacare.” Since we’re probably going to be hearing this from a lot of Republicans in the coming days as they wax rhapsodic about their deep concern for America’s hourly workers, it would be good to clarify just what it is they’re talking about here.
So let’s be absolutely clear: what they’re proposing is to make it easier for large employers to have full-time employees to whom they don’t provide health insurance. That’s it.
This is about the employer mandate of the Affordable Care Act. It required that companies with 50 or more employees provide health coverage to full-time workers. The mandate has been delayed—for companies with 100 or more workers it takes effect in January, while those with between 50 and 99 will have to comply in 2016. The law’s authors had to define “full-time” somehow, and they knew that if they defined it as someone working 40 hours, then employers could just cut people to 39 and deny them coverage. So they set the line at 30 hours, partly on the assumption that if an employer has a full-time employee, it would be difficult to cut them all the way down to 29 hours to declare them part time and avoid offering the coverage.
One really important thing to understand for context: almost all large employers already offer health coverage. In fact, 96 percent of firms with 50 or more workers do so, even before the mandate kicks in. Among larger firms the number is even higher. For all but a small number of firms, this provision doesn’t matter.
Republicans have always objected to the employer mandate, and they’d like to repeal it entirely. The fact that now McConnell and Boehner are suddenly talking about the question of where the line between part-time and full-time work is suggests strongly that they’re going to be introducing legislation to move that line. It takes a lot of gall to present it as some kind of pro-worker initiative, since what it actually means is, “We want to let your boss cut your hours from 40 to 39, then he’ll be able to take away your health coverage.” But they’re surely hoping that the debate will sound to the public like Republicans want to mitigate the job-killing effects of Obamacare and stand up for workers, while the President just wants government sticking its hand in everybody’s business. And who knows, they might be right.
For the record, there are strong arguments that the employer mandate should indeed be repealed—provided it’s replaced with new provisions that protect people whose employers drop coverage. And I’ve advocated de-coupling health insurance from employment for years. But don’t let Mitch McConnell fool you into thinking he’s trying to help hourly workers.
By: Paul Waldman, Contributing Editor,The American Prospect, November 7 2014
“What’s A Speaker To Do?”: It’s Not Looking Good For Boehner’s Anti-Obama Lawsuit
When House Speaker John Boehner (R-OH) announced his plan to sue President Barack Obama for delaying enforcement of the Affordable Care Act’s employer mandate, the reviews were swift and negative. Legally, the lawsuit seemed destined for failure. Politically, it looked like a dud that could actively backfire on the GOP.
Two months later, things aren’t looking much better for House Republicans’ quest to scramble the balance of power in Washington.
On Tuesday, a federal appeals court tossed out a different lawsuit challenging the Obama administration’s employer mandate delay. The 7th Circuit Court of Appeals in Chicago ruled that the Association of American Physicians and Surgeons had no right to sue.
Politico’s Jennifer Haberkorn reports:
A unanimous three-judge panel threw out the case only three days after oral argument, a breakneck speed.
The physicians’ group argued that the Obama administration doesn’t have the right to delay the implementation of the employer mandate, particularly without delaying the individual mandate, too. The doctors said they are harmed because when people pay the penalty, they have less income to buy medical care from them.
“The [Supreme] Court has rejected efforts by one person to litigate about the amount of someone else’s taxes (or someone else’s subsidies, which are taxes in reverse),” Judge Frank Easterbrook wrote for the three-judge panel, which also included Judges William Bauer and Richard Posner. All three were nominated to the bench by Republican presidents.
This creates an obvious dilemma for Boehner and the House GOP, who are expected to advance a very similar argument. Making matters worse, their original legal team has jumped ship.
On Friday, The New York Times reported that attorney David B. Rivkin Jr., who had agreed to take the case on behalf of House Republicans, “withdrew from the case under pressure after facing criticism that he had taken on an overly partisan lawsuit.” The report adds that some of Rivkin’s partners feared that the suit would hurt the firm’s credibility, presumably due to its divisive nature and extremely long odds for success.
The new attorney handling the suit, William A. Burck, has recently popped up in the news for helping House Republicans sue Attorney General Eric Holder to turn over documents related to the “Fast and Furious” gun-running scandal, and for defending former Virginia first lady Maureen McDonnell in her corruption trial (neither ended particularly well).
So what is Speaker Boehner to do? He could abandon his plan in the name of fiscal conservatism, and save $350,000 for the taxpayers (and his caucus from a lot of embarrassment). But Republicans still have plenty of fundraising to do before Election Day, so expect them to plow ahead — and to refuse to rest until Obamacare is fully implemented.
By: Henry Decker, The National Memo, September 23, 2014
“Collaborating With The Enemy”: Can Republicans Be Convinced To Help Improve The Affordable Care Act?
When the Affordable Care Act was passed in early 2010, people made lots of predictions about how its implementation would proceed, in both practical and political terms. While the law’s opponents all agreed that it would be a disaster from start to finish, the law’s supporters were slightly less unanimous, if nevertheless optimistic. Most figured that though there would probably be problems here and there, by and large the law would work as it was intended, enabling millions of uninsured Americans to get coverage and providing all of us a level of health security we hadn’t known before.
And that’s what has happened. But there was one other assumption among the supporters that’s worth examining anew, now that most of us agree the law isn’t going to be repealed. Like every large and complex piece of social legislation, it was said, the ACA would have to be tweaked and adjusted over time. For instance, when it was passed in 1935, Social Security excluded agricultural and domestic workers, just coincidentally shutting most African-Americans out of the program. Those workers were added later on, and other changes were made as well, like adding cost of living adjustments to account for inflation. Medicare, too, has undergone changes both large (like adding a prescription drug benefit) and small. So what are the possibilities for adjusting the ACA in the near future? In the current atmosphere—one not just of intense partisanship, but one in which one party has made venomous opposition to this law the very core of its political identity—can we hope to actually fix the things about the law that might need fixing?
The administration has already made some changes to the law using its executive authority. Most notably, it has delayed the employer mandate; as it stands now, the mandate won’t fully take effect until 2016. As it happens, few people are particularly enthused with the employer mandate in its current form; conservatives have never liked it, and more than a few liberals have their doubts about it. As Mike Konczal recently explained, there’s an alternative:
The employer mandate has been another major roadblock for the ACA. The current “Obamacare” plan requires employers with more than 50 full-time workers to pay a part of the health care costs for employees who work more than 30 hours a week, or pay a fine. This is unpopular with employers, and it fuels larger worries that workers are getting their hours capped or that expanding businesses are hitting a major road bump the moment they reach 50 employees.
As the Roosevelt Institute’s Richard Kirsch writes, the way the final House bill tackled this issue was much smarter: Under the House plan, employers that didn’t provide health care to their employees would pay a percentage of payroll as a tax to cover health care. Consequently, there would be no incentive to juke the number of new hires or their hours. Also, current health insurance premiums don’t vary according to an employee’s income, which discourages employers from hiring lower-wage workers. Charging a percentage of payroll for coverage would help companies cover the costs even as the system moves towards the exchanges.
If you were a Republican who cared about this issue, this would be a perfect opportunity to change the law in a way you’d like. It wouldn’t be giving up something to get half a loaf, it’d be giving up nothing to get half a loaf. Democrats and Republicans could agree to change the mandate, whether it’s to more closely resemble the original House version of the bill, or something else. I’m sure that creative legislators could come up with any number of ways to produce the maximum number of people with employer-sponsored coverage—or even, now that the exchanges seem to be working quite well, devise a new way for employees to use them without employers just getting off the hook for providing coverage.
But we all understand the present reality, which is that no Republican is willing to work with Democrats to improve the ACA, even in ways that address particular complaints conservatives have about the law, because that’s considered collaboration with the enemy and would guarantee you the wrath of the Tea Party and a primary challenge from the right. Within the GOP, changing the law for the better is actually thought to be a terrible sin, while making futile gestures in opposition to the law while tacitly accepting its existence in its current form is thought to be the height of ideological integrity.
It’s possible that over time, as the repeal fantasy looks more and more ridiculous, Republicans will begin to grow more open to legislation making changes to the ACA to improve its operation. That’s what logic would dictate, but anything other than fist-shaking opposition to the ACA may remain politically toxic for a long time in the GOP.
But maybe there’s something Democrats can do to affect that conversation. It’s easy for them to just say:
“If Republicans really cared about improving people’s lives they’d join with us to make improvements, but instead they’d rather just have talking points.” It’s even true. But that doesn’t get you anywhere. So perhaps Democrats could try getting more specific. They could come up with whatever they think is the best way to deal with a weakness in the law, like the current form of the employer mandate. Turn that into a bill. Start moving it through the legislative process in the Senate. Force Republicans to answer specific questions about it, like: “Congressman, you’ve criticized the current employer mandate. Tell me why you think this new proposal isn’t an improvement.”
I’m not naïve enough to think that all Republican opposition to improving the ACA is going to melt before the power of those questions. But it only helps Republicans if they can stay vague in their discussions of the law. The more specific the discussion gets, the harder it is for them. And at least you could introduce the idea of Republicans joining with Democrats to improve the law, which is something barely anyone has brought up until now.
By: Paul Waldman, Contributing Editor, The American Prospect, September 8, 2014
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