“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
“Some GOPers Want To Play Chicken”: Getting An Obamacare Repeal Bill On Obama’s Desk; For What?
There’s an interesting Rachel Bade/Jennifer Haberkorn piece up at Politico about all the trouble congressional Republicans have encountered in trying to use the budget reconciliation process to pass a simple veto-proof “root and branch” repeal of the Affordable Care Act. Seems the Senate parliamentarian is telling them they’d have to limit themselves to items with an immediate budgetary impact in any reconciliation bill. But any “partial” repeal–much less a replacement–legislation would raise policy questions on which Republicans disagree, and might also involve deficit-boosting consequences for which offsets would have to be found. So some GOPers want to play chicken:
Some conservatives and staff in both chambers, like House Freedom Caucus Chairman Jim Jordan (R-Ohio), are urging the chambers to do a straight one- or two-sentence repeal of everything. They argue that the parliamentarian has to look only at the words in front of her during reconciliation and should not be able to force lawmakers to break out the provisions on their own.
One aide working on the matter suggested they may try this and see if it works — but others are doubtful.
I guess I’m unclear as to why this is worth the trouble. Getting legislation repealing Obamacare onto Obama’s desk, long the obsessive goal of congressional Republicans, will not accomplish a thing other than confirming that Obama doesn’t want to kill his signature domestic policy achievement and Republicans do. I think most voters out there for whom opposition to Obamacare is a “bullet vote” have probably already figured out they should vote Republican in 2016. So the whole exercise appears to be one of those “energize the base” things whose value I am always questioning.
I do think that if SCOTUS kills Obamacare subsidies in states using federal exchanges there will be some value in Republicans getting a bogus “fix” onto the president’s desk in order to blame him for the subsequent chaos. In that contingency they could almost certainly structure a bill that would meet the conditions for reconciliation, and could probably tamp down any internal opposition by ensuring dissenters there’s zero chance any of it will become law. But on “root and branch repeal,” they might as well just promise they’ll git er done when President Bush or Walker or Rubio takes office.
By: Ed Kilgore, Contributing Writer, Political Animal Blog, The Washington Monthly, June 1, 2015
“The Political Consequences?: Will Republicans Suffer Politically If The Supreme Court Strikes Down ObamaCare? Don’t Count On It
Next month, the Supreme Court might rule in King v. Burwell that the Affordable Care Act does not make subsidies available on insurance exchanges established by the federal government. In a rational world, this argument would be laughed out of court, as even former Republican politicians and congressional staffers have suggested. But that’s not the world we live in.
So it’s worth considering the political fallout if the Supreme Court’s Republican nominees throw the U.S.’s health care market into chaos. The short answer is that, with some notable exceptions, Republicans could very well get away with it.
The policy consequences of such a ruling are much clearer: It would be a disaster. Without subsidies, the vast majority of people would not be able to afford insurance, and therefore would not be subject to the mandate to carry insurance. As a result, younger and healthier people would drop out of the insurance market, creating an actuarial death spiral in which more and more expensive policies are offered to fewer and fewer customers — until the exchanges collapse. Millions of people stand to lose their insurance as a result.
This, of course, is why Congress did make subsidies available on the federally established exchanges. It certainly didn’t go to the trouble of creating a federal backstop that was designed to fail. And until a few libertarian fanatics willfully misread the law as a Hail Mary in their legal war on the ACA, nobody on either side of the aisle involved in the bill thought otherwise.
Should Republicans be careful what they wish for? Possibly. “Fear of change has been the right’s most powerful weapon in the health-care wars since they began under Harry Truman,” writes New York‘s Jonathan Chait. “Seeing their weapon turned against them is a frightening sensation, one they are likely to experience many times again.” The GOP “might be better off if the court just left the law as is,” agrees The Washington Post‘s Greg Sargent. Even The Wall Street Journal editorial page is worried.
The idea that destroying ObamaCare would be politically counterproductive is superficially plausible. Any such decision would be a 5-4 opinion with only Republican-nominated judges in the majority, over at least one lengthy dissent. The Republican-controlled Congress could restore the subsidies by passing a one-paragraph bill, as President Obama will surely emphasize repeatedly.
Congress could try to pass the buck to Obama by passing a “fix” loaded with poison pills that the president would have to veto, but I agree with Chait and Sargent that the Republican conference is too dysfunctional to pull this off. And when Congress fails to act, overwhelmingly Republican-controlled statehouses could solve the problem by establishing their own exchanges — could, but in most cases won’t.
So a Republican Supreme Court takes health insurance away from millions of people, and Republican-controlled governments fail to take simple steps to solve the problem. That has to be a political disaster for the GOP, right?
Not necessarily. “If the Obama Administration loses in the Supreme Court,” argues New Yorker legal analyst Jeffrey Toobin, “the political pain will fall almost exclusively on the president and his party.” And counterintuitive as it might seem, political science favors Toobin.
The problem is that a separation-of-powers system dilutes accountability, and voters generally lack the information that will allow them to sort out the blame for a given disaster. Presidents generally get both more credit and more blame for what happens under their watch than is justified by their power.
This is reflected in the fact that the ACA — a statute that required immense congressional skill on the part of Democrats to pass — is commonly known as ObamaCare. To voters who aren’t Democratic partisans, Republican assertions that Obama is at fault for any bad outcomes that arise from ObamaCare will carry a lot of weight. The media, which tends to give credence to even hare-brained Republican notions out of a misguided effort to remain balanced, is unlikely to make it much clearer.
It may also seem as if Republicans would take the rap for a decision written by a bare majority of Republican-nominated justices, but this overlooks how little the public knows about the Supreme Court. Only a little more than a quarter of the public can name the chief justice. The vast majority of voters will have no idea whether the decision was 5-4 or unanimous, let alone the partisan details of the split. Justice Ruth Bader Ginsburg might write her greatest dissent, but it’s hard to imagine it changing many minds, given that only a tiny minority reads Supreme Court opinions and almost all of them know what they think about the case beforehand.
So in general, I do think Toobin is right. Republicans in Congress and in deep red states can probably avoid any consequences. But there is one twist. Republicans are most vulnerable in states with federally established exchanges that are led by the GOP, but tend to swing to the Democrats in presidential elections. Voters in those states are more likely to blame Republicans for not establishing a state exchange.
As it happens, one such state is Wisconsin, whose governor is a frontrunner for the Republican nomination in 2016. The Republican primary electorate will prevent Scott Walker from signing a bill establishing a state exchange, but his refusal will make it harder for the GOP to duck the issue. In this instance, it might be harder for Republicans to deflect responsibility to Obama than it would be otherwise.
Ultimately, the political consequences of a Supreme Court ruling against the government are difficult to predict. But what we know for sure is that it would be best for the Supreme Court to uphold ObamaCare — so we don’t have to find out.
By: Scott Lemieux, The Week, May 27, 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
“A Bold Truth-Teller”: What If A 2016 GOP Candidate Told The Truth About Obamacare?
If you’re a Republican presidential candidate, there aren’t too many ways you can distinguish yourself from your primary opponents on the issue of health care — I hate Obamacare, you hate Obamacare, we all hate Obamacare. But maybe there’s another way, for someone who has the courage to shift his rhetoric and present themselves as a bold truth-teller.
To put that in context, let’s look at some new developments on the Obamacare front.
A study just out from the Rand Corporation — not exactly a hotbed of socialist thinking — finds that after the coverage provisions in the Affordable Care Act took effect: “we estimate that 22.8 million people became newly insured and that 5.9 million lost coverage, for a net increase of 16.9 million with insurance as of February 2015.”
In addition, a new Gallup poll shows that 43 percent of Americans say they’re satisfied with the government’s work in health care, which doesn’t sound so great until you learn it’s the highest number this question has received since the organization began asking it in 2001.
We already know that all the predictions Republicans made about the ACA — a decline in health coverage, skyrocketing medical spending and premiums, massive job losses — failed to come true. One seemingly sensible response to the facts about Obamacare is to pretend they aren’t true, which is how prominent Republicans have handled things until now. After all, there hasn’t been much punishment for spreading falsehoods about the law, and the public is still woefully uninformed about it. For example, for every American who knows that the law has proven much less expensive than was originally estimated, there are eight who mistakenly believe it ended up being more expensive.
Nevertheless, the good news continues to pile up, and at least some of it may be penetrating to the public, albeit slowly (approval of the law has been ticking up of late). Which could create the opening for a Republican willing to say something different from his peers.
Let’s imagine a presidential candidate who said something like this to GOP primary voters:
“I know that just saying ‘Repeal Obamacare!’ is a good applause line. And believe me, I wish it had never passed. But we’ve had over 50 votes to repeal it in Congress, and it’s still here. Like it or not, it’s becoming entrenched. If we repealed it tomorrow, it would mean that millions of Americans would lose the coverage they’ve got. We can’t object to people losing their plans because of Obamacare, and then say it’s no big deal if a much larger number of Americans lose their coverage when we repeal the law. And Obamacare does a few things that we Republicans favor.
“So instead of just saying ‘Repeal it now!’, I’m going to give you a plan to keep the good things, ditch the bad things, and move toward a better health care system. We’ve spent the last five years banging our heads against the wall over this law, and some of my opponents think more banging is the answer. But I want to solve the problem.”
The Republican who said that would, of course, be branded a traitor by some. But he’d also get a wave of adoring press coverage, in which he’d be characterized as a straight-talking man of courage and the only one willing to have an adult conversation about health care.
The outcome of the King v. Burwell lawsuit could also help make his case. If the Supreme Court rules in Republicans’ favor, millions of Americans will lose their health coverage when subsidies are taken away, and efforts for a legislative fix are uncertain at best. The experience will make it clear even to many Republicans that “Burn it down!” isn’t always the wisest approach.
Yes, a Republican who turned his back on “repeal” to focus on “replace” would be taking a huge risk, since GOP primary voters are not necessarily going to be thoughtful and measured in their response to someone proposing something less than all-out war against Barack Obama and everything he ever touched. But it might just be crazy enough to work.
By: Paul Waldman, Senior Writer, The American Prospect; The Plum Line Blog, The Washington Post, May 7, 2015
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