“Pretending They’ve Come To The Rescue”: Republicans To Play Blame Game On Obamacare Subsidies?
I’ve been saying for a while now that Republicans could be in a jam if the U.S. Supreme Court announces a decision in June invalidating the insurance premium subsidies for people living in the 36 states utilizing federally establishment exchanges under Obamacare, if only because the immediate impulse of rank-and-file conservatives will be to dance and sing even as millions are in danger of losing affordable health care coverage.
Perhaps behind the scenes conservatives are beginning to plan an education campaign to explain to The Troops via Fox News or other “trusted” sources why they can’t just let the subsidies die. Last week I noted that Ramesh Ponnuru had begun talking about Republicans agreeing to fix the subsidy problem while pivoting (presumably as part of some national “deal”) rapidly to an Obamacare “replacement.” But he didn’t sound terribly confident about selling this strategy to the GOP. Since we’re unlikely to find out where SCOTUS is going until June, there is time for sober reflection on the consequences of taking away the subsidies among a constituency that’s a lot more likely to include a lot of Republican voters than the subjects of a Medicaid expansion. The question is whether it can be effectively and quickly communicated to people who have been told since 2010 that the Affordable Care Act is the work of the devil.
Now one of Ramesh’s reformicon colleagues from National Review, Yuval Levin, has (with his collaborator on one of hte Obamacare “replacement” proposals, James Capretta) written a careful message to conservatives via the Wall Street Journal suggesting they get ahead of the curve:
In essence, if the court rules today’s subsidies illegal, those state officials could face a choice between creating a state exchange (and so reinforcing ObamaCare) or seeing some residents lose coverage they now have. ObamaCare’s opponents in Congress should give them a third option: a viable alternative to the Affordable Care Act.
The first step is to introduce legislation that would allow any state to opt out of all of ObamaCare’s mandates, regulations, taxes and requirements, and instead opt into a far simpler and more flexible alternative system. In that system, state residents not offered health coverage by their employers could receive a federally funded, age-based credit for the purchase of any state-approved health-insurance product—including those bought outside of any exchange and regardless of whether they meet ObamaCare’s coverage requirements.
Anyone who remains continuously insured in this system would be shielded from higher premiums or exclusions from coverage based on an existing condition. This would give consumers a strong incentive to buy coverage without a mandate to do so. All other insurance regulation, however, would happen at the state level.
States that opt for this approach would also be permitted to transform their Medicaid programs into premium-support systems for lower-income households. These would function as add-ons to the credit and allow eligible residents to buy the same kind of coverage everyone else can purchase.
The credit could be large enough to allow anyone to purchase at least catastrophic coverage—enabling the uninsured to be covered and everyone to be protected from the most extreme health expenses. Alternatively, it could be used to supplement the purchase of more comprehensive coverage. In essence, the credit would extend to everyone else the same benefit that many people have long received in the employer system. It would do so without disrupting the employer system, the coverage most Americans have.
What they are describing is pretty much the Burr-Coburn-Hatch “PCARE” proposal offered early this year as a suggested Obamacare “replacement,” with some transitional rules that would let Obamacare subsidies stay in place through the end of 2015. And they think Obama would be forced to accept something like this “solution” since otherwise he, not Republicans, will look like the one standing in the way of restored insurance for the people afflicted by the Court.
It’s all pretty clever, but a comment from Ponnuru shows its central flaw:
My only quibble is with the headline, “Time to Start Prepping ObamaCare Reforms.” What they’re talking about is better described as preparing an exit ramp from Obamacare.
Reforms, “exit ramp,” whatever. Such terms are meant to obscure the fact that such plans would keep Obamacare in place until such time as a new system could be implemented–again, before “the base” can make it all moot by forcing GOP policymakers to celebrate the carnage instead of repairing it. And if I know that and you know that, so too would the president, and I think it’s very predictable that well before congressional Republicans could be united behind such a proposal Obama would let them know the only non-disruptive course of action is to restore the intended subsidy system and then talk about what’s next. Pretending they’ve come to the rescue of people in danger of losing their health insurance by eliminating all the provisions that make it good coverage at an affordable price isn’t likely to work. But nice try.
By: Ed Kilgore, Contributing Writer, Political Animal, The Washington Monthly, December 19, 2014
“A Collective GOP Orgasm”: Today’s Conservative Obamacare Baloney Debunked
If you were perusing the conservative twitter-sphere this morning, you would have witnessed a kind of collective orgasm, as it was discovered that back in 2012, MIT economist Jonathan Gruber gave a talk to a small group in which he seemed to support the analysis of the two judges on the D.C. Circuit who ruled this week in Halbig v. Burwell that the subsidies for buying health insurance under the Affordable Care Act should go only to people who live in states that set up their own insurance exchanges. Since Gruber advised Mitt Romney on the creation of Massachusetts’ health reform (which became the model for the ACA) and then advised the White House and Congress during the preparation of the ACA reform, conservatives are now convinced they have their smoking gun: The law, they contend, was always designed to deprive millions of Americans of subsidies, and was in fact never meant to achieve that “universal coverage” that everyone involved said was its goal.
Up to the point where the Supreme Court rules on Halbig, those conservatives will be citing Gruber’s 2012 comments. A lot. But the idea that something Gruber said in response to a question in front of what looks to be around 20 people is more relevant than literally everything else that happened during the drafting and debate over this law’s passage is, to put it plainly, insane.
Let me provide a partial list of people who spent over a year between the beginning of the debate over health-care reform and the passage of the law talking about the ACA, but never mentioned what was supposedly the intent of Congress that people in states using the federal exchange would be deprived of subsidies:
- Barack Obama
- Kathleen Sebelius
- Harry Reid
- Every other Democratic senator
- Nancy Pelosi
- Every other Democratic House member
- Every health-care analyst in America
- Every health-care reporter in America
- Every Republican in the Senate
- Every Republican in the House
- Every conservative opponent of the law
Ezra Klein, who wrote as much about health-care reform during this period as anyone, tweeted this morning that he interviewed Gruber dozens of times, and not only did Gruber never mention this issue, “[t]he same is true for literally everyone else I interviewed. I never heard a single person say subsidies don’t work in federal exchanges.”
As for Gruber himself, this morning he spoke to Jonathan Cohn, and here’s what he told him:
I honestly don’t remember why I said that. I was speaking off-the-cuff. It was just a mistake. People make mistakes. Congress made a mistake drafting the law and I made a mistake talking about it.
During this era, at this time, the federal government was trying to encourage as many states as possible to set up their exchanges. …
At this time, there was also substantial uncertainty about whether the federal backstop would be ready on time for 2014. I might have been thinking that if the federal backstop wasn’t ready by 2014, and states hadn’t set up their own exchange, there was a risk that citizens couldn’t get the tax credits right away. …
But there was never any intention to literally withhold money, to withhold tax credits, from the states that didn’t take that step. That’s clear in the intent of the law and if you talk to anybody who worked on the law. My subsequent statement was just a speak-o—you know, like a typo.
There are few people who worked as closely with Obama administration and Congress as I did, and at no point was it ever even implied that there’d be differential tax credits based on whether the states set up their own exchange. And that was the basis of all the modeling I did, and that was the basis of any sensible analysis of this law that’s been done by any expert, left and right.
I didn’t assume every state would set up its own exchanges but I assumed that subsidies would be available in every state. It was never contemplated by anybody who modeled or worked on this law that availability of subsidies would be conditional of who ran the exchanges.
Cohn, too, says he never spoke to anyone who mentioned this before the Halbig lawsuit. If this was actually what Congress thought the law would do, then liberals would have been freaking out about this provision for years, because it would mean that millions of people wouldn’t be able to get coverage. And conservatives would have been crowing about it for years, for the same reason. But nobody on either side was, because it was never part of Congress’s intent. It was a mistake, and one contradicted by multiple other provisions in the law.
I have no doubt that when the Halbig case is re-argued before the full D.C. Circuit, either the plaintiffs’ attorneys or one of the conservative judges will bring up Gruber’s 2012 comments. Let’s just hope it gets shot down like the baloney it is.
By: Paul Waldman, Contributing Editor, The American Prospect, July 25, 2014
“A Conservative Judiciary Run Amok”: Using Judicial Sophistry As An Instrument Of Anti-Democratic Sabotage
Retired Supreme Court Justice John Paul Stevens captured our ideal when he wrote of the judge as “an impartial guardian of the rule of law.”
By effectively gutting the Affordable Care Act on Tuesday, two members of a three-judge panel on the D.C. Circuit Court of Appeals showed how far right-leaning jurists have strayed from such impartiality. We are confronted with a conservative judiciary that will use any argument it can muster to win ideological victories that elude their side in the elected branches of our government.
Fortunately, the D.C. Circuit ruling is unlikely to stand. On the same day the D.C. panel issued its opinion, a three-judge panel from the 4th Circuit ruled unanimously the other way, upholding the law.
There is a good chance that the 11-judge D.C. Circuit will take the decision away from its panel — something it is usually reluctant to do — and rule as a full court to affirm the ACA as commonly understood. It is virtually certain that a majority of the court’s members disagrees with the panel’s convoluted reading of the law and wants to avoid creating a needless conflict in jurisprudence with the 4th Circuit.
When Congress wrote the health law, it envisioned that the states would set up the insurance exchanges where individuals could purchase coverage. But knowing that some states might not want to set up these marketplaces themselves, it also created a federal exchange for those that bowed out. There are 36 states under the federal exchange.
The law includes a mandate requiring Americans to buy health insurance and subsidizes those who need help to pay their premiums. The law falls apart without the subsidies, which go to its central purpose: providing insurance for those who cannot afford it.
But the law was not particularly well-drafted. It’s not uniquely flawed in this respect. As Judge Andre M. Davis wrote in a concurrence to the 4th Circuit ruling: “Neither the canons of construction nor any empirical analysis suggests that congressional drafting is a perfectly harmonious, symmetrical and elegant endeavor. . . . Sausage-makers are indeed offended when their craft is linked to legislating.”
Here’s what the two Republican-appointed judges on the D.C. panel did to make the sausage disappear entirely: Because the subsidies are established in a part of the law referring to state exchanges, the D.C. Circuit ruled that no one on the federal exchange is eligible for them.
Poof! There goes the health law in most of the country.
Never mind that many other parts of the law clearly assume that the subsidies apply to people on both the state and federal exchanges. And never mind that during the very long debate over the ACA, no one ever said otherwise.
In ruling to kill the subsidies for an estimated 5 million people on the federal exchange, Judge Thomas B. Griffith invents the idea that Congress may have intended to deny subsidies to people in states that didn’t set up their own exchanges as an incentive for those states to do so. But as Judge Harry T. Edwards writes in his dissent, the “incentive story is a fiction, a post hoc narrative” to justify the idea that “Congress would have wanted insurance markets to collapse in states that elected not to create their own exchanges.”
The extreme judicial activism here is obvious when you consider, as the 4th Circuit did, that even if you accept that there is ambiguity in the law, the Supreme Court’s 30-year-old precedent in Chevron v. Natural Resources Defense Council held that in instances of uncertainty, the court defers to federal agencies rather than concocting textual clarity when it doesn’t exist.
Griffith has to pretend that his cramped reading of the written text — again, a reading utterly disconnected from the reality of the law’s history — is the only one possible. From there, he goes on to force the government and those losing their subsidies to live with a patently absurd result.
Edwards’s logic is compelling: The Griffith decision “defies the will of Congress” and goes along with a “not-so-veiled attempt to gut the Patient Protection and Affordable Care Act.”
As the 4th Circuit’s Davis put it, the law’s opponents are trying “to deny to millions of Americans desperately needed health insurance through a tortured, nonsensical construction” of the law.
We cannot use judicial sophistry as an instrument of anti-democratic sabotage.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, July 23, 2014
“The Limited Role Of The Courts”: Why Obamacare Probably Isn’t Doomed
The Affordable Care Act took a potentially serious hit today when the D.C. Circuit Court of Appeals struck down a rule that extended the law’s health-care subsidies to residents of the three-dozen states where the federal government runs a health insurance exchange.
But the fact that another court of appeals upheld the same rule on the same day shows that the legal issue is very thorny and will very likely be ultimately resolved by the Supreme Court. And the administration probably will come out ahead in the end.
The controversial part of the law says that the government can provide subsidies for health insurance bought on exchanges “established by [a] State.”
The argument against the administration’s rule is straightforward: if a state refuses to set up an exchange, forcing the federal government to operate it instead, then the subsidies aren’t available. That legal reading of the statute makes some sense, because Congress may have wanted to encourage states to create exchanges with the carrot of promising subsidies for the states’ residents.
But the courts are required to uphold the rule if the law is ambiguous and the administration’s position is reasonable. The Supreme Court will probably uphold the rule under that lax standard.
Here’s why. Other provisions of the statute reference an exchange “established by [a] State,” but really include the federal government. Another section of the law refers to a state-run exchange when everyone agrees that it means to include the federal government too. Also, the law actually requires every state to set up an exchange, and it refers to all the exchanges as having been established by states. So you can look at the statute as a whole and reasonably read it to extend the subsidies to residents of every state.
It also makes some difference that the section of the law cited by the rule’s opponents is a strange place for Congress to have limited the availability of subsidies, because that section states the formula for tax credits rather than core rules on who gets benefits under the Act. There also isn’t much evidence to suggest that Congress actually was intending to use the subsidies to encourage states to create exchanges.
We won’t have a final answer for a while. The parties can ask all the judges of both of the courts of appeals that issued today’s rulings to rehear the case. The administration has the better chance, because recent appointments to the court that struck down the rule tilt the court to the left. But it may be that both courts will see that Supreme Court review is inevitable and stand aside to let the Justices decide the issue.
The issue is so close and contentious that it is basically inevitable that the Supreme Court will have to resolve it. If the case goes straight to the Supreme Court, we will get a final decision within a year; otherwise, it will probably be two. My best guess is that a majority of the Justices will cite the limited role of the courts and rule for the administration and uphold the rule by the same5-to-4 majority that rejected the major constitutional challenge to the law two years ago.
By: Tom Goldstein, Appellate Advocate, best known as one of the nation’s most experienced Supreme Court practitioners, Co-founder and Publisher of SCOTUSblog; The Washington Post, July 22, 2014
“Arrogance Cloaked In Humility”: Conservative Judges Are Ganging Up To Steal Your Affordable Healthcare
Tuesday morning, two competing courts – and the conservative judges turned silent partisan assassins that dominate them – put at risk the affordable health insurance on which millions of Americans have already come to rely. These six robed men in Washington and Virginia, within about two hours, have now set up yet another US supreme court showdown on the Obamacare law Republicans on Capitol Hill just couldn’t kill, despite trying more than 50 times.
Up first: an outrageous two-to-one decision by a panel of the Court of Appeals for the DC Circuit ruling against sensible subsidies that real people need, based on what we can charitably called the “reasoning” of the two Republican nominees on the three-judge panel – the opinion was written by an appointee of George HW Bush, along with a judge nominated by his son.
They were asked to decide on the legality of the subsidies based on the precise wording of the Affordable Care Act, which provided health benefits to non-affluent Americans purchasing insurance from federal exchanges newly established under President Obama’s signature health-care law. In the literal language of the statute, subsidies are available to those purchasing insurance on “state exchanges”, although a majority of exchanges were ultimately established in the states by the federal government because of state-level Republican hostility to the law. Sensibly, the Internal Revenue Service allowed anyone who purchased from any exchange – federal or state – to qualify for the subsidies.
The Bush-appointed judges, however, aren’t much for being sensible: they ruled instead that only those who purchase insurance from the exchanges established by the states are allowed subsidies.
In what can only be described as black comedy, the majority opinion concludes with paeans to judicial restraint. (One is reminded of Lewis Carroll’s Walrus, “deeply sympathizing” with oysters prior to having “eaten every one”.) “We reach this conclusion, frankly, with reluctance,” the majority wrote, going on to concede the following:
[O]ur ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly.
But they are compelled, you see, to inflict these consequences as a means of “ensuring that policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges.” For two judges to subvert the clear purpose of the law in the name of judicial restraint is, to borrow Justice William Brennan’s phrase, arrogance cloaked as humility.
The sole dissenting judge, Harry Edwards, in his tour de force dissent, made clear his distaste for appointed judges making new law – and pointed out that the majority opinion requires the courts to ignore all the sound principles of statutory construction.
Congress clearly thought the subsidies were essential to the functioning of the exchanges, and it permitted the federal government to establish exchanges in order to prevent states from thwarting the aims of the ACA – which is to help people buy more affordable health insurance.
The majority’s reading, however, would allow hostile states to do exactly what the law was designed to prevent: by refusing to establish a state exchanges, they could effectively stop all the exchanges from working properly.
As Edwards observes, the majority’s interpretation “is implausible because it would destroy the fundamental policy structure and goals of the ACA that are apparent when the statute is read as a whole”. Plus, not a single state government – even those hostile to the law – believed that the statute demands what the majority says it does. Nobody is confused about what the law intended, but some people who oppose the ACA on political grounds are opportunistically pretending to be.
Meanwhile, just across the Potomac River, the Fourth Circuit Court of Appeals was charged with hearing a different case on the same question. But it ruled in favor of the administration, effectively siding with the first ruling’s minority opinion. That’s the sort of legal dichotomy – however strange the buzzer-beater timing – that pretty much guarantees the supreme court will ultimately answer this question for all the Americans using the federal exchanges.
That’s slim comfort for some: while most of the law narrowly survived a constitutional challenge that made it to the supreme court, the number of Americans covered by it would be much higher had the court not used bafflingly illogical reasoning to re-write the act’s Medicaid expansion in a separate ruling, which made it easier for states to opt out of that provision.
That’s all part of the Republican strategy, of course: once they lost their battle in Congress to ensure that as many non-affluent Americans as possible would continue to experience the “freedom” of going without health insurance coverage, they’ve been throwing ad hoc legal arguments at the ACA, hoping that something would stick.
Don’t be fooled that the judges who hear these challenges are not influenced by the ongoing political partisanship. As Ian Millhiser of ThinkProgress demonstrated, both judges who ruled against the subsidies today are highly partisan Republicans.
Despite Republican efforts, a study in the New England Journal of Medicine published last week found that 20m Americans are now covered by the exchanges and Medicaid expansion created by the Affordable Care Act. For all its imperfections, the law is a striking policy success and has done a great deal to address a major national problem. However, the Republican party – and most of its agents on the federal courts – would still prefer the number of Americans who benefit from the law to be much lower, as evidenced by their legal strategy.
The only good news is that this decision against the subsidies may not stand. The federal government is expected to appeal for a hearing from the entire DC circuit court, and it is unlikely that the full court would reach the same conclusion. It’s also far from clear that opponents’ argument could command a majority of the supreme court, where the cases are probably headed.
But it’s still remarkable that an argument this legally weak – and with such destructive human consequences – could command support from the majority of an appellate panel. Given the active Republican hostility to the Affordable Care Act, and the party’s utter indifference to the fate of the millions of people is helping, there’s no way to be entirely confident that the supreme court won’t use the opportunity of a new case to take something else away from the Americans who need it.
By: Scott Lemieux, The Guardian, July 22, 2014
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