“The Obamacare Plaintiffs And Medicare”: Maybe They’d Love Obamacare If The Hated President’s Name Wasn’t On It
Politico‘s Jennifer Haberkorn scored a bit of a scoop by convincing the chief plantiff in the King v. Burwell litigation, David King, to let her into his Fredericksburg, VA living room, apparently because he didn’t want to leave her shivering on his front doorstep. Most of what she tells about him, though, seems to come from his recent social media expressions rather than from anything he said to her in person:
The man who could cripple Obamacare isn’t shy about telling the world that he thinks the president is an “idiot,” posting altered images of the first lady in Middle Eastern clothing and expressing his hatred for the “Democraps” who enacted the health care law.
Greg Sargent, however, finds something more interesting to examine about King and a couple of his co-plaintiffs:
[I]t’s fascinating that King is less than a year away from qualifying for Medicare. As it happens, Politico reports that two of the other four challengers are 64 and 63, also putting them very close to qualifying. Remember, this lawsuit is all about the plaintiff’s objection to being subjected to the individual mandate’s requirement that they get insurance. The plaintiffs are claiming injury because Virginia is on the federal exchange, which, they say, means they should not be getting the subsidies which are necessary under the law to require them to get insurance under the mandate. Yet three of the challengers are very close to having the mandate canceled for them by Medicare. (One, it should be noted, is 56 years old.)
It would be really interesting to know what these challengers think of Medicare, given their role in a lawsuit that could go a long way towards gutting the coverage guarantee for millions of Americans.
Unfortunately, we cannot answer Greg’s question yet, if ever. Maybe these folk share the not uncommon belief of seniors that Medicare is an “earned benefit” (at most half-true) in contrast to the “welfare” nature of Obamacare (again, at most half-true). Maybe they don’t like Medicare as it is but would like to “reform” it–though the most common Republican proposal for “reform” is to convert Medicare from being a defined government-provided benefit to a means-tested system of public subsidies for private insurance purchases like Obamacare. Maybe they’d love Obamacare if the hated president’s name wasn’t on it. It’s hard to say. But whatever their reasons, they’re willing to force millions of people who aren’t on the brink of qualifying for Medicare into a health care wilderness. No wonder they don’t want to give interviews.
By: Ed Kilgore, Contributing Writer, Political Animal, The Washington Monthly, February 6, 2015
“An Iron Determination”: Revisionist History On Obamacare Subsidies
As we drift toward a potentially disruptive Supreme Court decision on the subject of whether Congress in the the Affordable Care Act intended to withhold insurance purchasing subsidies from people in states that declined to set up their own exchanges, the large and ever-increasing evidence that nobody in the states making such decisions thought they were risking subsidies is becoming a potential factor in how the Supremes come down. At the Plum Line this morning, Greg Sargent collects a variety of statements from Republicans involved in state-level exchange decisions, and concludes with this compelling quote from University of Michigan law professor
Nicholas Bagley:
[T]he challengers say that Congress clearly threatened the states with the loss of tax credits if they didn’t set up their own exchanges. But the states read the ACA very carefully, and they didn’t see any threat.
It’s the worst kind of revisionist history to claim that the ACA put states on notice of the harsh consequences of failing to establish an exchange. The states had no idea that tax credits hung in the balance. And the Supreme Court has said time and again that statutes shouldn’t be read to impose unexpected burdens on the states. That basic principle — the idea that states must have clear notice of the consequences of their decisions — protects the rights of the states in our federal system. And it cuts hard in favor of the government.
That’s going to be an argument that only an iron determination to mess up implementation of the Affordable Care Act can overcome.
By: Ed Kilgore, Contributing Writer, Political Animal Blog, The Washington Monthly, January 27, 2015
“Give Me Liberty And Give You Death”: How The GOP Embraced Being The Party Of Death
As part of their long-standing war on the Affordable Care Act, conservatives have filed a lawsuit willfully misreading the statute to deny upward of 10 million people subsidies to purchase insurance. This denial of insurance will almost certainly lead to significant amounts of preventable death and suffering.
Michael Strain of the American Enterprise Institute doesn’t deny any of this. Instead, he argues that some suffering and death may well be a price worth paying:
In a world of scarce resources, a slightly higher mortality rate is an acceptable price to pay for certain goals — including more cash for other programs, such as those that help the poor; less government coercion and more individual liberty; more health-care choice for consumers, allowing them to find plans that better fit their needs; more money for taxpayers to spend themselves; and less federal health-care spending. This opinion is not immoral. Such choices are inevitable. They are made all the time. [The Washington Post]
At a high enough level of abstraction, what Strain is saying isn’t wrong. Not all public policy can function on the basis of keeping mortality rates to the lowest possible number. Some lifesaving treatments might help so few people and cost so much that they might not be worth it. Even major infrastructure projects entail some risk of injury or death on the part of workers, but few people would argue that any such risk is unacceptable.
But the fact that the costs of the ACA might theoretically exceed the benefits doesn’t get us very far. What benefits, exactly, would accrue if millions of people were denied medical coverage because the ACA is seriously damaged or destroyed? It’s here that Strain’s argument falls apart.
One potential line against the ACA is the radical libertarian one, holding that any effort by the government to provide health care to the non-affluent represents an unacceptable level of state coercion. The problem here is that the “freedom” to die of preventable illnesses and injuries is not one the vast majority of people value very highly. A Republican Party committed to these principles would be transformed into an electoral coalition that would make Barry Goldwater’s 52 electoral votes in 1964 look robust.
Since the people responsible for the anti-ACA effort know this perfectly well, the constitutional arguments against the ACA have the advantage of not logically requiring the Supreme Court to rule the entire modern regulatory state unconstitutional. The disadvantage is that they ask the court to deny many millions of people health coverage based on liberty interests that are ludicrously trivial.
The litigants challenging the constitutionality of the ACA do not contend that the federal government cannot regulate national health-care markets. Rather, their constitutional argument boils down to an assertion that the government has the authority to assess a tax to compel people to purchase health insurance, but not a penalty. It’s pretty hard to argue that the fate of liberty in America hinges on this formal limitation on federal power.
The more successful federalist argument launched against the Affordable Care Act is similarly unattractive. Chief Justice John Roberts’ inept rewriting of the ACA’s Medicaid expansion allowed states to opt out. Republican-controlled states have eagerly rejected the large amounts of federal money on offer to insure more poor residents, something that is likely to result in the unnecessary deaths of more than 5,000 people a year.
I don’t think this particular protection of state autonomy is worth that many lives (or, indeed, a single life). But here’s the kicker: The Supreme Court’s decision does not even meaningfully protect state sovereignty. Under the court’s theory, Congress could have enacted the ACA’s Medicaid expansion by repealing the pre-existing Medicaid entirely. This, apparently, would be completely constitutional. There may be things worth 5,000 lives a year; an incoherent legal argument that doesn’t even really protect states’ rights isn’t one of them.
Strain’s arguments have similar problems. To his credit, he’s not a libertarian radical who asserts that the federal government cannot play any role in expanding health-care coverage. Rather, “universal coverage should concern itself with the catastrophic expenses associated with serious medical events that will affect a minority of the population.” The affluent, or people with good jobs, can get real medical coverage; the non-affluent might get some protection for disasters, but would have to pay through the nose for common medical procedures. Whether or not one prefers this policy alternative — which I think is far worse — there’s not a lot of meaningful protection of “freedom” going on here. The number of lives worth sacrificing so that people can choose between a few more insurance alternatives — or between the “freedom” to pay for checkups for their children or their electric bill — strikes me as “zero.”
And, of course, even this is too generous to the Republican reformers. The ACA isn’t unpopular because it provides subsidies that are too generous or because the exchanges offer insurance that cover too many things. The Republican alternatives Strain discusses will all disappear should the ACA be destroyed, because the trade-offs involved will outrage many voters. The actual Republican alternative Strain thinks it’s worth killing a lot of people for is “nothing.”
But, hey, the next upper-class Republican tax cut could be even larger, and it’s not going to be elite Republicans who pay the price. As the writer Roy Edroso puts it, Strain’s argument can be summarized as “give me liberty and give you death.” I think we can see why Republicans would prefer for the Supreme Court to do their dirty work.
By: Scott Lemieux, The Week, January 29, 2015
“Absurdity Of The Argument Is It’s Greatest Strength”: Republicans Know Their Obamacare Case Is Bogus; Here’s The Proof
On Thursday, the government filed its brief to the Supreme Court in the case that will determine whether Obamacare subsidies disappear in three dozen states. Its argument is comprehensive, but one part of it speaks directly to the political history of the law, and the fact that everybody, including Republicans in Congress who now claim out of convenience that the law plainly limits subsidies to states that set up their own exchanges, always understood it to authorize subsidies everywhere.
The government confines this part of its argument to the legislative debate in the run up to the law’s passage in early 2010, but it could make the point more succinctly (and perhaps convincingly) by fast forwarding to early 2011. These days, Republicans up to and including Senate Majority Leader Mitch McConnell confidently pronounce that “the language of the law says … subsidies are only available for states that set up state exchanges.” But that’s not what they believed four years ago.
When Republicans took over the House in 2011, the political environment in Congress changed dramatically. Obamacare couldn’t be repealed, but it became fair game for damaging modifications, and the GOP took aim at it and other domestic spending programs whenever opportunities to offset the cost of new legislation arose. One of the first things Congress did back then was eliminate an Affordable Care Act provision that would have significantly expanded the number of expenses businesses are required to report to the IRS. Even before the law passed, business associations were livid about the “1099” requirement, and created such an uproar over it that the question quickly became how, not if, it would be repealed. Even Democrats wanted it gone.
The only problem was that the reporting requirement was expected to raise over $20 billion. Under GOP rule, it could only be offset with spending cuts elsewhere in the budget. As it happens, they found those spending cuts elsewhere in the ACA itself. Specifically, Republicans paid for repealing the 1099 provision by subjecting ACA beneficiaries to stricter rules regarding when they have to reimburse the government for subsidy overpayments. Make more money than you anticipated, and the government will claw back your premium assistance come tax season.
The congressional budget office scored the plan as essentially deficit neutral, and Republicans voted for it overwhelmingly. But you see the problem here. If the ACA plainly prohibits subsidies in states that didn’t set up their own exchanges, then there would be no subsidies in those states to claw back. And by April 2011, when the clawback passed, we already knew that multiple states were planning to protest ACA implementation and let the federal government set up their exchanges, including giant states like Florida, which now has a million beneficiaries. They would have needed a different, or additional, pay-for.
Obamacare’s legal challengers might chime in here to insist that their case is impervious to revelations like these. CBO’s analyses were premised on the idea that every state would set up its own exchange, and Republicans (and many Democrats) based their votes on what CBO told them. Other Democrats who actually understood the scheme may have simply pretended not to notice the problem. Nevertheless, they’d say, the law was designed to withhold subsidies from people whose states didn’t establish exchanges, and to ruin the individual and small-group insurance markets in those states, without providing any notice to either. In a perverse way, the absurdity of the challengers’ argument is it’s greatest strength. Because the scheme they insist Congress intentionally created was so far from Congress’ mind, it’s hard to find contemporaneous evidence that Congress absolutely didn’t mean to condition these subsidies. In much the same way, we can’t be sure that Congress didn’t mean to denominate those subsidies in Canadian dollars. A $ isn’t necessarily a $ after all.
But this familiar line of defense crumbles here. It is facially plausible—though incorrect—to posit that at the time the law passed, CBO believed subsidies would be available everywhere because it simply assumed every state would set up an exchange. But that assumption didn’t hold in April 2011. Something else must explain CBO’s 1099-repeal score, and the Republican votes that followed it. What we have in the form of this bill is clear evidence that everyone who voted for it (including every single Republican, save the two GOP congressmen and one GOP senator who weren’t present) understood the Affordable Care Act to provide subsidies everywhere.
Congress repealed the 1099 provision at an important moment—after multiple states announced that they would step back and let the federal government establish their exchanges, but before the IRS issued its proposed rule stipulating that subsidies would be available on both exchanges. The only thing Congress had to go on when it stiffened the clawback mechanism was its own reading of the Affordable Care Act, and Congress behaved exactly as you would expect. It operated with the understanding that subsidies were universal.
Today, many Republicans will tell you that the law plainly forecloses subsidies through the federal exchange. Six senators—John Cornyn, Ted Cruz, Orrin Hatch, Mike Lee, Rob Portman, and Marco Rubio—and nine congressmen—Marsha Blackburn, Dave Camp, Randy Hultgren, Darrell Issa, Pete Olson, Joe Pitts, Pete Roskam, Paul Ryan and Fred Upton—have even filed an amicus brief with the Supreme Court, which begins, “The plain text of the ACA reflects a specific choice by Congress to make health insurance premium subsidies available only to those who purchase insurance from ‘an Exchange established by the State….’ The IRS flouted this unambiguous statutory limitation, promulgating regulations that make subsidies available for insurance purchased not only through exchanges established by the States but also through exchanges established by the federal government.”
All of them, save Cruz, who was elected in 2012, voted for 1099 repeal.
In its brief, the government argues that “it was well understood that the Act gave ‘States the choice to participate in the exchanges themselves or, if they do not choose to do so, to allow the Federal Government to set up the exchanges.’ And it was abundantly clear that some States would not establish their own Exchanges.“ It was more than well understood. Congress actually endorsed that very proposition.
By: Brian Beutler, The New Republic, January 23, 2015
“It’s Good To Be A Bush”: How The GOP Presidential Candidates Will Talk About Obamacare
One of my favorite factoids from the 2012 presidential race emerged when Mitt Romney released his 2011 tax return. There may not have been much scandalous contained therein, but Romney’s sources of income were so varied and intricate that the return ran to a mind-boggling 379 pages. And it’s starting to appear that Jeb Bush may have a similarly complex financial life, which he’s starting to unravel as he prepares for a potential presidential run. There’s one particularly interesting source of income, as this article in the Los Angeles Times explains:
And on Wednesday, Bush resigned from the board of directors of Tenet Healthcare Corp., also effective Dec. 31, according to a corporate filing. The Dallas-based company actively supported the 2010 Affordable Care Act, and has seen its revenue rise from it, an issue that could draw fire in Republican primaries.
Bush earned cash and stock awards worth nearly $300,000 from Tenet in 2013, according to corporate filings. He also sold Tenet stock worth $1.1 million that year, the records show.
If it’s like other big corporations, the services for which he was paid $300,000 by Tenet probably involved little more than going to a couple of meetings every year. It’s good to be a Bush. But let’s try to imagine the fire he might draw in the primaries over his association with the company. Are politicians from the party of capitalism and business really going to criticize him for making a ton of money, even if it involved the hated Affordable Care Act?
Yeah, they probably will. Which raises the question of exactly how the 2016 GOP candidates are going to address the ACA, which even as it becomes further embedded in our health-care system is still on many Republicans’ minds. Chances are they’re going to talk about it in the most general terms they can, in a discussion that stays at a symbolic level and avoids any specifics.
That’s because there are many more Americans who have a negative view of the ACA as an abstraction than there are who dislike the things it actually does. Members of the public are about evenly split when you just ask them what they think of the law. (In the latest Kaiser Family Foundation poll, 45 percent say we should move forward with the law or expand it, while 43 percent say scale it back or repeal it.) But with the exception of the individual mandate to acquire coverage, the specific provisions of the law are all supported by strong majorities. Even majorities of Republicans support elements such as the creation of the exchanges, the expansion of Medicaid and the provision of subsidies to help people afford insurance.
So if you’re a Republican candidate, you have to seek safe harbor on the terrain of the general and symbolic. Otherwise, you’d end up like Mitch McConnell did during the last campaign, insisting that while he wanted to repeal the ACA “root and branch,” he also wanted to keep almost everything the law does.
At the moment, lots of Republicans remain psychologically trapped in the days right after the problematic rollout of Healthcare.gov convinced them all that the ACA would collapse in a matter of weeks or months. At the time, they could barely contain their glee. As Ramesh Ponnuru and Yuval Levin — widely considered two of the more sober conservatives on issues like these — wrote at the time, “As ObamaCare’s failures and victims mount by the day, Republicans have so far mostly been watching in amazement. They expected the law to fail, but even among its most ardent opponents few imagined the scale and speed of the fiasco.”
Even if that was your honest assessment back then, you’d have to be in the grips of a nearly psychotic level of denial to believe it today. Every result of the law may not be perfect, but it has been an overwhelming success. Just about every prediction Republicans made has turned out false. The economy hasn’t tanked, 10 million people were newly insured even before this year’s open enrollment, premium increases are slowing, overall health costs are slowing, and conservatives looking for specific evidence of the law’s failure don’t quite know what to say.
So criticizing something like the fact that one of your opponents sat on the board of a company that benefited from the ACA offers a way to tell voters that you still hate Obamacare with every fiber of your being — and that opponent obviously doesn’t — without having to talk about what the law has accomplished.
Now let’s imagine something fanciful. What if one of the GOP candidates said something like this:
I opposed Obamacare. I wish it had never passed. But now it has been implemented, and just repealing the whole thing isn’t an option anymore. Too many people are now on either Medicaid or plans they got through the exchanges, and it would be wrong to just toss them off their coverage. And there are some things in the law that both conservatives and liberals support. So here’s a plan to keep what’s right about it and fix what’s wrong about it.
We all assume that if a candidate said that, he’d be condemned by his opponents as a traitor and all Republican voters would turn against him. The former would certainly occur, but the latter might not. He might be able to pull the other candidates into a discussion about the specifics of the law, where — if he were the only one with a plan actually grounded in the real world — he could win the argument.
But the truth is, that’s not too likely. If Romney, whose Massachusetts health insurance reform provided the model for the ACA, could win the nomination just shaking his fist at President Obama and insisting that his reform was nothing like Obama’s — which not a single person, Republican or Democrat, actually believed — then why take that chance? If you’re Jeb Bush, you can leave the board of Tenet and repeat over and over that your loathing for the ACA is as strong as anybody’s. In the primaries at least, that will probably be enough to neutralize the issue.
By: Paul Waldman, Contributing Editor, The American Prospect; Contributing Writer, The Plum Line Blog, The Washington Post, December 26, 2014
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