“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
“Good Obamacare News And The Republican Dilemma”: To The Broader Electorate, GOP Positions Just Don’t Make Sense
Today the Commonwealth Fund released a new survey on the performance of the Affordable Care Act, and it adds yet more data to the tide of good news on the Affordable Care Act. As a number of people have noted, the law’s evident success is making it increasingly hard for Republicans to sustain their argument that Obamacare is a disaster and must be immediately repealed. But it’s actually a little more complicated than that, and the ways different Republicans are changing—or not changing—their rhetoric on health care is a microcosm of the GOP’s fundamental dilemma.
But before we get to that, let’s look at what the survey showed:
The uninsured rate for people ages 19 to 64 declined from 20 percent in the July-to-September 2013 period to 15 percent in the April-to-June 2014 period. An estimated 9.5 million fewer adults were uninsured. Young men and women drove a large part of the decline: the uninsured rate for 19-to-34-year-olds declined from 28 percent to 18 percent, with an estimated 5.7 million fewer young adults uninsured. By June, 60 percent of adults with new coverage through the marketplaces or Medicaid reported they had visited a doctor or hospital or filled a prescription; of these, 62 percent said they could not have accessed or afforded this care previously.
That’s a whole heap of good news, and there are a number of interesting results buried in the details, one of which relates to how happy people are with the insurance they have. One of the arguments conservatives have made is that people who ended up changing plans will hate the new ones they had to get because of Obamacare. Well, it turns out that among people who previously had insurance but are on a new plan they got through the exchanges or Medicaid, 77 percent say they’re satisfied with their new plan, compared to only 16 percent who aren’t satisfied, and the results are almost exactly the same for those who were previously uninsured. Not only that, 74 percent of Republicans with new plans say they’re satisfied.
As more and more good news comes in about the implementation of the ACA, one would expect Republicans to talk about it a lot less, particularly given all their prior predictions of doom. And that is happening, but it’s not happening in the same way everywhere. If you’re a candidate in a swing state, it makes less and less sense, particularly as you move from your primary to the general election, to spend your time and ad dollars talking about how awful Obamacare is and pledging to vote to repeal it another 50 or 100 times should the voters send you to Washington to do the nation’s business.
But the calculation is very different if you’re running in a more conservative state, and there are lots of close Senate races in those this year, including Kentucky, Arkansas, Louisiana, and Georgia. In many of those places, the GOP candidate knows he can almost win solely with Republican votes. And for base Republicans, the emotional power of Obamacare is immune to factual refutation. No matter how much data we get demonstrating that the law is working well, those voters will still get angry every time the word is spoken. So it’s in the candidates’ interest to keep on talking about it, in the same apocalyptic terms.
This is where we get to the parallel with the larger Republican dilemma. On issue after issue, the interests of the national GOP are at odds with the interests of the bulk of the party’s officeholders, because the latter come from conservative districts or states where political calculations look very different. The national party would like to pass immigration reform to woo the growing Hispanic electorate; individual Republicans need to take a hard stance on immigration to satisfy nativist voters in their districts. The national party knows it should moderate its stance on marriage equality to keep up with evolving public opinion and appeal to young voters; individual Republicans dependent on older voters and evangelical Christians need to hold the line for “traditional” marriage. In the broadest terms, the national party knows it should modernize, but a Republican congressman who won his last general election by 40 points doesn’t see much reason to change.
The context where this dynamic will play out most visibly is, of course, in the presidential race, where Republican candidates will face two dramatically different electorates; It’s as though they’ll be running in Mississippi in the primaries, then in Ohio in the general election.
It’s possible that in the next two years things will change in health care, and the ACA will look much worse than it does today. But it seems more likely that current trends will continue, and it’ll look even better. Even if that happens, Republican candidates will still need to tell primary voters the law is an abomination that must be cast back into the fiery pits of hell from whence it came. To most voters in the broader electorate, that won’t make a lot of sense.
By: Paul Waldman, Contributing Editor, The American Prospect, July 10, 2014
“The Incompetence Dogma”: So Much For Obamacare Not Working
Have you been following the news about Obamacare? The Affordable Care Act has receded from the front page, but information about how it’s going keeps coming in — and almost all the news is good. Indeed, health reform has been on a roll ever since March, when it became clear that enrollment would surpass expectations despite the teething problems of the federal website.
What’s interesting about this success story is that it has been accompanied at every step by cries of impending disaster. At this point, by my reckoning, the enemies of health reform are 0 for 6. That is, they made at least six distinct predictions about how Obamacare would fail — every one of which turned out to be wrong.
“To err is human,” wrote Seneca. “To persist is diabolical.” Everyone makes incorrect predictions. But to be that consistently, grossly wrong takes special effort. So what’s this all about?
Many readers won’t be surprised by the answer: It’s about politics and ideology, not analysis. But while this observation isn’t particularly startling, it’s worth pointing out just how completely ideology has trumped evidence in the health policy debate.
And I’m not just talking about the politicians; I’m talking about the wonks. It’s remarkable how many supposed experts on health care made claims about Obamacare that were clearly unsupportable. For example, remember “rate shock”? Last fall, when we got our first information about insurance premiums, conservative health care analysts raced to claim that consumers were facing a huge increase in their expenses. It was obvious, even at the time, that these claims were misleading; we now know that the great majority of Americans buying insurance through the new exchanges are getting coverage quite cheaply.
Or remember claims that young people wouldn’t sign up, so that Obamacare would experience a “death spiral” of surging costs and shrinking enrollment? It’s not happening: a new survey by Gallup finds both that a lot of people have gained insurance through the program and that the age mix of the new enrollees looks pretty good.
What was especially odd about the incessant predictions of health-reform disaster was that we already knew, or should have known, that a program along the lines of the Affordable Care Act was likely to work. Obamacare was closely modeled on Romneycare, which has been working in Massachusetts since 2006, and it bears a strong family resemblance to successful systems abroad, for example in Switzerland. Why should the system have been unworkable for America?
But a firm conviction that the government can’t do anything useful — a dogmatic belief in public-sector incompetence — is now a central part of American conservatism, and the incompetence dogma has evidently made rational analysis of policy issues impossible.
It wasn’t always thus. If you go back two decades, to the last great fight over health reform, conservatives seem to have been relatively clearheaded about the policy prospects, albeit deeply cynical. For example, William Kristol’s famous 1993 memo urging Republicans to kill the Clinton health plan warned explicitly that Clintoncare, if implemented, might well be perceived as successful, which would, in turn, “strike a punishing blow against Republican claims to defend the middle class by restraining government.” So it was crucial to make sure that reform never happened. In effect, Mr. Kristol was telling insiders that tales of government incompetence are something you peddle to voters to get them to support tax cuts and deregulation, not something you necessarily believe yourself.
But that was before conservatives had fully retreated into their own intellectual universe. Fox News didn’t exist yet; policy analysts at right-wing think tanks had often begun their careers in relatively nonpolitical jobs. It was still possible to entertain the notion that reality wasn’t what you wanted it to be.
It’s different now. It’s hard to think of anyone on the American right who even considered the possibility that Obamacare might work, or at any rate who was willing to admit that possibility in public. Instead, even the supposed experts kept peddling improbable tales of looming disaster long after their chance of actually stopping health reform was past, and they peddled these tales not just to the rubes but to each other.
And let’s be clear: While it has been funny watching the right-wing cling to its delusions about health reform, it’s also scary. After all, these people retain considerable ability to engage in policy mischief, and one of these days they may regain the White House. And you really, really don’t want people who reject facts they don’t like in that position. I mean, they might do unthinkable things, like starting a war for no good reason. Oh, wait.
By: Paul Krugman, Op-Ed Columnist, The New York Times, June 26, 2014
“The Big Dis-Kynect “: Mitch McConnell’s Big Obamacare-Kynect Lie
Here’s why all the super-smart insidery people privately say they think that in the end, Alison Lundergan Grimes will not beat Mitch McConnell in Kentucky. Her strategy, they say, is to keep it close, keep her distance from Obama, hold her own in debates, try to match him attack ad for attack ad, and just hope McConnell makes a mistake. And the super-smart people agree: You may admire or loathe McConnell, but if he’s proven one thing in umpteen elections, it’s that he doesn’t make mistakes.
That’s what the insiders say. There’s just one problem with it. McConnell has made about a mistake a week so far! He’s run an awful campaign. And he’s given anybody no reason at all to think he won’t just keep making them.
The latest is maybe the biggest howler yet, bigger than even the ad that mistook Duke basketball players for UK Wildcats. He said last week that while he will certainly still pursue repeal of Obamacare, he thinks Kentucky should be able to and will keep its celebrated Kynect health-care exchange, set up by Democratic Governor Steve Beshear under the Affordable Care Act. Here’s how LEO Weekly, out of Louisville, reported the moment:
McConnell took three questions on the Affordable Care Act and how its repeal would affect the 413,000 Kentuckians who now have insurance through the state exchange, Kynect. The first question asked how he would respond to those who say repeal would take away the health care of 413,000 Kentuckians, to which McConnell launched into his standard answer that Obamacare was raising premiums, raising deductibles, and killing jobs, concluding, “It was a big mistake, we ought to pull it out root and branch and start over.”
WHAS’ Joe Arnold followed up that answer by asking, “But if you repeal it, won’t all of the state exchanges be dismantled? How does that work?” McConnell then launched into his standard “solution” of sorts, calling for an “international market” of insurance companies that aren’t limited by state lines, in addition to “malpractice reform.”
The LEO writer, Joe Sonka, whom McConnell’s muscle men once threw out of a press conference because he has the temerity to write, like, facts and stuff, went on to slice and dice McConnell’s argument: “Kynect could not have existed without the Affordable Care Act, and it would cease to exist if the Affordable Care Act ceased to exist. There would be no people eligible for the expanded Medicaid—the large majority of those who signed up through Kynect—and there would be no exchange for people to sign up for affordable private insurance with federal subsidies. Saying that Kynect is unconnected with the ACA or its repeal is just mind-numbingly false. The ACA and Kynect are one in the same.”
This is obvious to anyone with a brain. The category of humans with a brain includes McConnell. He’s not that stupid. That leaves only one other choice: hypocritical. Well, two other choices: hypocritical and lying. That is, he knows Kynect can’t exist without the ACA, but he just said it anyway, without any concern for the truth. And the hypocrisy part comes in, of course, because, well, how can he have stood up there for years saying that, no, Americans should not be permitted to get health care the Obama way, and he’s going to strike it down the second he can—but Kentuckians, they’re different?
This gives Grimes an opening she didn’t have. More than 430,000 Kentuckians have health care now through Kynect. Mitch wants to take it away. No, wait, he doesn’t! Well, he wants to take Obamacare away, and Kynect came through Obamacare, but somehow he’s going to keep Kynect. And he’s going to go buy a new Oldsmobile, even though Olds is out of business, and he’s gonna campaign with Colonel Sanders, even though he’s been dead since 1980, and once he’s reelected he’s going to privatize Medicare—except in Kentucky, because Kentucky is different. Grimes’s media team, a talented bunch in my experience, should be able to have quite a lot of fun with this.
The Lexington Herald-Leader sure did, raking McConnell over the coals Wednesday. It wrote:
Asked specifically if Kynect should be dismantled, McConnell said: “I think that’s unconnected to my comments about the overall question.”
Huh?
That’s a quote that should live forever, or at least until Election Day. The super-smart insiders may be right, though, about one thing. McConnell won’t make “a mistake.” He’ll make several.
By: Michael Tomasky, The Daily Beast, May 29, 2014
“Deciduous Tree Rot”: McConnell Should Be Removed “Root And Branch”
In Kentucky, the federal health care exchange created by the Affordable Care Act is called Kynect. Kynect is very popular, but ObamaCare is very unpopular. So it goes.
Senate Minority Leader Mitch McConnell wants to rip up ObamaCare “root and branch” and toss it in the mulch pile, but he doesn’t want to do a thing to Kynect because it has already given more than 400,000 Kentuckians health insurance, many for the first time. Of course, since Kynect and ObamaCare are actually two words for the same thing, it isn’t possible to kill one without killing the other.
The Lexington Herald-Leader explains:
Repeal the federal law, which McConnell calls “Obamacare,” and the state exchange would collapse.
Kynect could not survive without the ACA’s insurance reforms, including no longer allowing insurance companies to cancel policies when people get sick or deny them coverage because of pre-existing conditions, as well as the provision ending lifetime limits on benefit payments. (Kentucky tried to enact such reforms in the 1990s and found out we were too small a market to do it alone.)
Kentucky’s exchange also could not survive without the federal funding and tax credits that are helping 300,000 previously uninsured Kentuckians gain access to regular preventive medicine, including colonoscopies, mammograms and birth control without co-pays.
As a result of a law that McConnell wants to repeal, one in 10 of his constituents no longer have to worry that an illness or injury will drive them into personal bankruptcy or a premature grave.
Repealing the federal law would also end the Medicaid expansion that is enabling Kentucky to expand desperately needed drug treatment and mental health services.
Kynect is the Affordable Care Act is Obamacare — even if Kentuckians are confused about which is which.
The Herald-Leader goes on to wonder how average Kentuckians are supposed to understand the Affordable Care Act if Mitch McConnell doesn’t understand (or pretends not to understand) it himself.
The answer to that is pretty easy. If Kentuckians start with the presumption that nothing that Mitch McConnell says about Kynect or ObamaCare or the Affordable Care Act is true, they will be much less confused. If they like Kynect, then they like ObamaCare and the Affordable Care Act. If they like it, they should vote out Mitch McConnell and prevent him from removing their benefits “root and branch.”
By: Martin Longman, Washington Monthly Political Animal, May 28, 2014
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