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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 beneficiariespeople 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 rulingand 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

November 10, 2014 Posted by | Affordable Care Act, Obamacare, U. S. Supreme Court | , , , , , , , , | Leave a comment

“The Campaign For Liberty”: The War On Obamacare Has Become A War On Minorities And The Poor

Like many eleventh-hour strategies, the right’s final offensive against the Affordable Care Act has a last-gasp quality to it. Where better-laid plans to defeat the ACA in Congress and via Constitutional challenge were fraught with ideological purpose, the challengers in Halbig v. Burwell are engaged in something much smaller. Their argument is merely that if you read a poorly drafted section of the statute out of context, it appears that the law doesn’t contemplate subsidies in states that availed themselves of the federal government’s backstop, Healthcare.gov. Millions of people would lose their health insurance in service of teaching Congress a lesson about the importance of legislative draftsmanship.

That’s not a very becoming political argument, though, so the Halbig supporters have stapled a grandiose claim to their core challenge. Because many of the people who would lose their insurance would also qualify for an exemption from the law’s insurance coverage mandate, they frame it as a principled campaign for liberty.

But many is not all. It’s probably not even most. As University of Michigan law professor Nicholas Bagley noted on Tuesday, a conservative victory in Halbig would eliminate subsidies for everyone, but the hardship exemption would only apply to a subset. Many, many peoplethose above about 180 percent of the federal poverty levelwould still be required to purchase insurance. It would just become more expensive for them. The exemptionthe escape hatch to freedomwould only be available to those whose coverage costs more than eight percent of income: the poor, and near-poor. These are the people whose liberty conservatives claim to be fighting forthe people who were only able to purchase insurance because the subsidies made it affordable. The people who, as Bagley writes, would “be free to decline coverage that, without tax credits, they can’t afford anyhow.”

This kind of post hoc appeal to liberty long predates the Affordable Care Act, but it has become particularly salient in the fight against Obamacare as enrollment has grown and weakened traditional tools of opposition. When the Supreme Court made the Affordable Care Act’s Medicaid expansion optional back in 2012, it vouchsafed an old but typically losing conservative argument that using federal spending as an incentive to force state action can be unconstitutionally coercivea freedom-crushing blow against states’ rights. But the freedom the Court upheld two years ago looks, in effect, an awful lot like the freedom the challengers in Halbig claim to be fighting for. In both cases there’s something conspicuous about the people to whom these strange conceptions of liberty apply.

As of early April, per this Kaiser Family Foundation map, 19 states remained fully unwilling to consider Medicaid expansion. In the weeks since, Wyoming and Tennessee joined Utah and Indiana among GOP-controlled states working toward expanding Medicaid. So the chips are slowly falling. But they are falling along fairly predictable racial and income lines.

Tennessee was a genuine surprise, in that it isn’t lily white, and has fairly high rates of poverty. But the GOP-controlled states that have expanded Medicaid, or are considering Medicaid expansion, are pretty white relative to GOP-controlled states where expansion is out of the question. Deep Southern states, where poverty is most concentrated and black population rates approach 30 percent, aren’t calling up the Department of Health and Human Services in Washington to negotiate a conservative Medicaid expansion compromise. To the contrary, that’s probably where resistance to the expansion runs strongest.

The story won’t be much different if conservatives get their way and ACA subsidies disappear in Healthcare.gov states. If you haven’t caught on by now, the conspicuous thing about the Medicaid freedmen and those who would be freed from the individual mandate is that they’re disproportionately black and poor. ACA rejectionism isn’t enhancing their liberty at all.

But there’s something conspicuous about the Obamacare opponents posing as tribunes for liberty, too. They’re nearly all affluent white people, who take their own health insurance for granted and probably wouldn’t consider themselves liberated if a court or legislature took aim at it for any reason. And though their rhetoric suggests otherwise, they’re waging the final Obamacare battles against poor people and minorities, not on their behalf.

 

By: Brian Beutler, The New Republic, September 4, 2014

September 6, 2014 Posted by | Affordable Care Act, Conservatives, Obamacare | , , , , , , , , | Leave a comment

“Not So Fast Bucko’s”: Anti-Obamacare Desperation Lawsuit Just Got More Desperate

The D.C. Circuit just agreed to hear the Halbig lawsuit. The short explanation of what this means is that it has closed off the easiest path to crippling Obamacare. Here’s the long explanation:

1. The Halbig lawsuit is the right’s most recent desperate effort to retroactively nullify the Affordable Care Act. The lawsuit is a wildly tendentious argument that, based on an extremely narrow reading of one ambiguous passage in the health-care law, people in states with federal-run insurance exchanges should be ineligible. Since the tax credits make insurance affordable for most consumers, the lawsuit would wreck the exchanges for some 6.5 million people, which is its entire point.

2. The Halbig suit has previously been laughed out of court, but in July, two out of three judges from the D.C. Circuit agreed with it. This ruling reflected the luck of the draw — the two judges were Republican appointees on a court consisting mostly of Democratic appointees.

3. This created a split, with some courts dismissing Halbig and another one embracing it. The split created an obvious window for the Supreme Court to take up the case — contrasting opinions between Federal Courts is a common reason for the Supreme Court to take up a case.

4. The split would close if the entire D.C. Circuit took up the case. In important cases with split decisions, the entire court usually weighs in. Conservatives desperately wanted to avoid this, for the reason stated above. They undertook a furious public campaign (see, for instance, here and here) to persuade the Court not to hear Halbig as a whole. Their rationale is that the Halbig lawsuit is not legally important enough to merit a full hearing. That argument is as ridiculous and transparently partisan as it sounds. Nicholas Bagley explains why here.

5. What happens next is that the entire D.C. Circuit will hear the case. Since the logic of the lawsuit is so ludicrous only a wildly partisan Republican jurist would ever accept it, it stands zero chance of success.

6. After that, Federal Courts will be unanimous in opposition to the Halbig lawsuit. The Supreme Court could still take up the case then, but it could just as easily decide not to hear it.

 

By: Jonathan Chait, Daily Intelligencer, New York Magazine, September 4, 2014

September 6, 2014 Posted by | Affordable Care Act, Conservatives, D. C. Court of Appeals | , , , , , | Leave a comment

“Sorry, Obamacare Denialists, You’re Insane”: Don’t Want To Be Called Ridiculous And Nutty, Stop Saying Ridiculous, Nutty Things

Conservative writer Philip Klein, who seems very nice, complains that liberals are being far too mean about the latest conservative attempt to gut Obamacare. “Liberal critics of this legal theory have portrayed it as absurd, ridiculous, nutty, stupid, and even criminal,” he writes. “Recently, I’ve been likened to the health policy equivalent of a World Trade Center attack conspiracy theorist merely for sympathetically reporting the legal case of the challengers.”

Not exactly. Klein is conflating two different things here. First, there’s the Halbig lawsuit, which hinges upon a strained, somewhat-exotic reading of the law to argue that the Affordable Care Act fails to create tax credits for people who buy their insurance through a federal exchange. The basis of this lawsuit is that the most explicit reference in the law mentions only state exchanges, and therefore courts ought to ignore all the other, less explicit parts of the law implying the opposite.

This is the case conservatives made for several years — Congress hastily failed to write a clear law, so conservative legal activists can take advantage of the screwup to interpret what (they argue, tendentiously but not insanely) is its literal reading. As the right-wing Investor’s Business Daily, an early booster of this once-long-shot legal challenge, gleefully put it in 2011, “Oops! No Obamacare Tax Credit for You!” I’m sorry, the card says “Moops.” I find this argument highly, highly unpersuasive. It’s been laughed out of court by Democratic-appointed judges, and rejected by at least one Republican judge. I will say this for it — it is at least tenuously connected to reality.

But now conservatives are making a different argument. They’re no longer saying that the lawsuit is exploiting a drafting error. They’re claiming it interprets the law correctly, and that the law actually (or possibly) intended to deny tax credits to people in federal exchanges. They have gone from smugly saying the card says “Moops” to insisting that the people who invaded Spain in the eighth century were actually called “the Moops.”

And yes, that is completely insane. There is a massive trove of evidence here regarding the intent of the law’s drafters. Dylan Scott has the latest chunk today — a deep excavation of the role of the Congressional Budget Office, which was a kind of legislative super-body regarded as authoritative by Congress. The CBO, like everybody involved in the law’s passage, believed the federal exchanges were designed to give health insurance to people in states that did not build their own. They were not designed as a deliberately unworkable punishment.

Yes, some smart people, speaking extemporaneously, were sometimes confused about just how the law worked. (Conservatives have made a great deal about off-the-cuff comments made by Jonathan Cohn before the law was actually finalized.) That doesn’t change the fact that the federal exchanges were obviously designed to give people affordable insurance. It may be mean to point out that those who argue otherwise are completely, manifestly ahistorical, but that’s just reality. If you don’t want to be called ridiculous and nutty, stop saying ridiculous, nutty things.

 

By: Jonathan Chait, Daily Intelligencer, New York Magazine, August 1, 2014

August 4, 2014 Posted by | Affordable Care Act, Conservatives | , , , , , , | Leave a comment

“The GOP’s 20-Year War On Health Care”: Republicans Are Going To Extraordinary Lengths To See That More Americans Die

Stop the presses: John Boehner admitted Thursday that the Republican Party’s long-awaited alternative to Obamacare needs a little more time in the oven. “You know, the discussions about Obamacare and what the replacement bill would look like continue. We’re trying to build consensus around one plan,” the Speaker told Hill reporters. “Not there yet.”

As if you even needed me to tell you, rest assured: It could be six months from now, a year from now, five years from now, or the day Bibi Netanyahu and Khaled Mashal share a Nobel Peace Prize—they aren’t going to have a plan. Oh, they might have a “plan.” They had a “plan” last year, or at least Oklahoma Sen. Tom Coburn and two others did. For about two days, they were really tooting its horn. Then it dawned on people that paying for it would involve a hefty middle-class tax increase, on higher-end insurance plans. You may have noticed since then that the Coburn “plan” has not exactly become a leading Republican talking point.

As conservatives continue to hail the Halbig decision, some historical context is called for. In my last column,  I wrote that conservatives and Republicans are going to extraordinary lengths to see that more Americans die. Not every reader was won over by that opinion, as you might imagine. But I think it’s beyond dispute, as a little discussion of political history should show.

The problem of millions of uninsured has existed in this country since—well, since forever. But as a running news story that the media paid attention to, for the last 25 or 30 years. I remember when the then-horrifying number was 15 million uninsured. Then 20 million, then 30 million, on up to the 46 million figure we often saw bandied about before the Affordable Health Care was enacted (10 million new Americans are insured as a result of it—a very respectable dent, for just one year). So, 30 years, a full generation, tens of millions of people adversely affected. And what, in all that time, has the Grand Old Party proposed to do about it all?

Not. One. Thing. Republican presidents had (if we go back to 1984) 16 years to pass some kind of health-insurance law. But none of the three ever even proposed one. George W. Bush did pass his Medicare law, but that was about adding prescription-drug coverage for seniors; it didn’t insure any previously uninsured citizens. What the GOP did instead, of course, was to fight tooth-and-nail to stop the two Democratic attempts to insure more people, succeeding the first time, failing the second.

And “tooth-and-nail” hardly begins to describe the demented and nearly sociopathic reality of Republican and conservative opposition to trying to make health insurance affordable for working-class people. Opposition to doing so has been one of the four grand accomplishments of the Republican Party of our time, which I would rank as follows, one scratched on each side of the obelisk: one, start disastrous wars and commit torture; two, make people despise the government; three, nearly cause a new Depression; and four, deny health insurance to as many people as possible, as aggressively and nastily as possible. It’s a grim record generally, and with regard to health care specifically, inarguably one that has promoted insalubriousness and suffering and, indeed, deaths that might have been avoided or delayed if people had had insurance.

It is true that some conservative intellectuals have offered up some ideas—as we know, the same individual mandate that the right now calumniates was a conservative idea at first. And John McCain actually had a decent-ish health-care platform plank in 2008. But if McCain had been elected, it’s very unlikely that the constellation of interests and power centers in the GOP would have permitted him ever even thinking about pursuing it. It was just something he felt he had to say to have credibility with middle-of-the-road voters. And in any case he wasn’t elected, and those conservative intellectuals’ ideas were never seriously proposed by elected Republicans, so the historical record is what it is.

The 20-year war on health care—since their 1993 defeat of the Clinton plan—has been about Republicans’ hatred of government; their view of people who don’t have insurance as lazy or flawed and not worth lifting a finger for; and their fear that if a law is passed and succeeds in bringing health care to millions, they and their whole vision of society will be discredited in the eyes of millions. Of course, these days, all that is shot through with one more element: a heavy dose of Obama hatred.

I was on Hardball Wednesday evening with David Corn, and Chris Matthews showed poll numbers during our segment that surprised even me. The topic was “rooting for failure.” Back in 2006, he said, Democrats were asked in a Fox News poll whether they wanted President Bush’s policies to succeed or fail. Answers: 40 succeed, 51 fail. Not particularly generous. But earlier this year, he said, CNN asked Republicans  the same question about President Obama. Answers: 14 succeed, 73 fail.

Think about that. Three-quarters of regular Republicans want Obama to fail. And just one in seven wants him to succeed. We pundits spend most of our time blaming politicians for inaction, but maybe it’s time to start blaming the people. If regular Republicans feel like this, there’s no way the elected officials who represent them are going to do anything that looks remotely like compromise or cooperation.

And no, they’re not going to offer a real health-care plan either. They first promised that in 2010, during the campaign season, so they could say “repeal and replace” instead of just “repeal” and sound like they had a positive side. Then they dropped “and replace,” and now that it’s election time again, it’s back. But it’s not in their DNA to do anything constructive about health care. Or—the VA crisis, the border crisis, the Middle East crisis, the wage-and-inequality crisis, et cetera—about much of anything.

 

By: Michael Tomasky, The Daily Beast, July 25, 2014

July 26, 2014 Posted by | Conservatives, Health Reform, John Boehner | , , , , , , | 1 Comment

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