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“The Supreme Court At Stake”: Overturning Obamacare Would Change The Nature Of The Supreme Court

In the first Affordable Care Act case three years ago, the Supreme Court had to decide whether Congress had the power, under the Commerce Clause or some other source of authority, to require individuals to buy health insurance. It was a question that went directly to the structure of American government and the allocation of power within the federal system.

The court very nearly got the answer wrong with an exceedingly narrow reading of Congress’s commerce power. As everyone remembers, Chief Justice John G. Roberts Jr., himself a member of the anti-Commerce Clause five, saved the day by declaring that the penalty for not complying with the individual mandate was actually a tax, properly imposed under Congress’s tax power.

I thought the court was seriously misguided in denying Congress the power under the Commerce Clause to intervene in a sector of the economy that accounts for more than 17 percent of the gross national product. But even I have to concede that the debate over structure has deep roots in the country’s history and a legitimate claim on the Supreme Court’s attention. People will be debating it as long as the flag waves.

But the new Affordable Care Act case, King v. Burwell, to be argued four weeks from now, is different, a case of statutory, not constitutional, interpretation. The court has permitted itself to be recruited into the front lines of a partisan war. Not only the Affordable Care Act but the court itself is in peril as a result.

At the invitation of a group of people determined to render the Affordable Care Act unworkable (the nominal plaintiffs are four Virginia residents who can’t afford health insurance but who want to be declared ineligible for the federal tax subsidies that would make insurance affordable for them), the justices have agreed to decide whether the statute as written in fact refutes one of the several titles that Congress gave it: “Quality, Affordable Health Care for All Americans.”

If the Supreme Court agrees with the challengers, more than seven million people who bought their insurance in the 34 states where the federal government set up the marketplaces, known as exchanges, will lose their tax subsidies. The market for affordable individual health insurance will collapse in the face of shrinking numbers of insured people and skyrocketing premiums, the very “death spiral” that the Affordable Care Act was designed to prevent.

It seems counterintuitive to describe a statutory case as having implications as profound as a constitutional one, but this one does. It hasn’t received the attention it deserves, probably because the dispute over phraseology that the case purports to present strikes many people as trivial or, at least, fixable if the court gives the wrong answer. Actually, it’s neither. (Has anyone noticed that the House of Representatives voted on Tuesday for the 56th time to repeal the law?)

The precise statutory issue is the validity of the Internal Revenue Service rule that makes the tax subsidies available to those who qualify by virtue of their income, regardless of whether the federal government or a state set up the exchange on which the insurance was bought. The challengers’ argument that the rule is invalid depends on the significance of two sub-clauses of the act that refer to “an exchange established by a state,” seemingly to the exclusion of the federally established exchanges.

But other parts of the complex and interlocking description of how the subsidies work suggest no such limitation. They point strongly in the opposite direction. For example, if a state chooses the option not to set up its own exchange, an option 34 states have exercised, the law requires the United States Department of Health and Human Services to “establish and operate such exchange within the state.” (Justice Antonin Scalia loves to quote dictionaries, and the government’s brief obliges him by quoting the definition of “such” from Black’s Law Dictionary, a standard legal reference: “that or those, having just been mentioned.”) The government argues that in this exercise of “cooperative federalism,” the federal government simply acts as the state’s surrogate; functionally, the federal exchange “is an exchange established by the state.” The law’s other relevant sections support that interpretation. For example, one section provides that any “applicable taxpayer,” defined by income, will be eligible for the subsidy, making no reference to where the taxpayer purchased the insurance.

I could go on about the intricacies of the statute, but the intricacies aren’t my point. Statutory interpretation is something the Supreme Court does all the time, week in and week out, term after term. And while the justices have irreconcilable differences over how to interpret the Constitution, they actually all agree on how to interpret statutory text. (They do disagree on such matters as the legitimacy of using legislative history, or on what weight to give a law’s ostensible purpose; I’m referring here to how they actually read a statute’s words.)

Every justice subscribes to the notion that statutory language has to be understood in context. Justice Scalia said it from the bench just last month, during an argument about the proper interpretation of the federal Fair Housing Act. “When we look at a provision of law, we look at the entire provision of law, including later amendments,” Justice Scalia said. “We try to make sense of the law as a whole.” (Justice Scalia was addressing a lawyer for the state of Texas, who was arguing for a very narrow reading of the Fair Housing Act. The justice’s skepticism toward the state’s statutory argument has been, in my opinion, widely misinterpreted to mean that Justice Scalia will rule for those seeking to preserve the law’s current broad meaning. I believe, rather, that Justice Scalia will accept the broad statutory reading and then go on to find that the Fair Housing Act so interpreted is unconstitutional. That important case is Texas Department of Housing and Community Affairs v. the Inclusive Communities Project.)

Across the ideological spectrum, the court’s opinions are filled with comments like Justice Scalia’s. Justice Clarence Thomas wrote in a 1997 opinion that in a statutory case, courts have to look at “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”

Chief Justice John G. Roberts Jr., arguing for contextual interpretation in a 2009 opinion, observed that “the sun may be a star, but ‘starry sky’ does not refer to a bright summer day.”

Justice Anthony M. Kennedy wrote in a 2006 opinion that an interpretation of a single statutory provision “is persuasive only to the extent one scrutinizes the provision without the illumination of the rest of the statute.”

These examples all come from a brief filed on the government’s behalf by a group of law professors who are specialists in statutory interpretation, administrative law or constitutional law. One is Charles Fried, a law professor at Harvard who served as solicitor general during the second Reagan administration. (Another signer of this brief is my Yale colleague, William N. Eskridge Jr., one of the country’s leading authorities on statutory interpretation.)

Readers of this column may recall my expression of shock back in November when the court agreed to hear King v. Burwell. A three-judge panel of the federal appeals court in Richmond, Va., had unanimously rejected the challenge to the law, and the plaintiffs’ appeal didn’t meet the normal criteria for Supreme Court review. A defeat for the government — for the public at large, in my opinion — seemed all but inevitable.

While I’m still plenty disturbed by the court’s action, I’m disturbed as well by the defeatism that pervades the progressive community. To people who care about this case and who want the Affordable Care Act to survive, I have a bit of advice: Before you give up, read the briefs. (Most, although not all, are available on the website of the American Bar Association. ) Having read them this week, I’m beginning to think for the first time that the government may actually prevail.

The challengers have submitted a bunch of me-too arguments from the usual ideological suspects that offer various versions of the narrative concocted to validate the acontextual reading of the law that eliminates subsidies on the federal exchanges. That narrative depicts a highly implausible scenario in which the states — which under the Constitution couldn’t actually be compelled to set up their own exchanges — were given a powerful incentive: Set up your exchange or, if you exercise your choice to default to the feds, your citizens will lose their right to the tax subsidies that will enable them to afford insurance.

The problem for the challengers is that the statute itself nowhere says that, and no one in a position of power appears to have believed at the time that the law would do any such thing. In recent weeks, supporters of the law have had a great deal of fun digging up old statements and video clips demonstrating the contemporaneous belief of prominent Republicans that the subsidies would be available to everyone. The website Talking Points Memo posted one such revelation the other day about Representative Paul Ryan, who at the time was the ranking Republican on the House Budget Committee.

Beyond what various people hoped or expected, there is a deeper issue that the challengers ignore but on which the government’s briefs are utterly persuasive. A fascinating brief filed in support of the government by an unusual coalition of 23 red-state and blue-state attorneys general (some from states with their own exchanges and others from federal-exchange states) maintains that the challengers’ narrative would “violate basic principles of cooperative federalism by surprising the states with a dramatic hidden consequence of their exchange election.”

This brief, written in the Virginia attorney general’s office, continues: “Every state engaged in extensive deliberations to select the exchange best suited to its needs. None had reason to believe that choosing a federally facilitated exchange would alter so fundamental a feature of the A.C.A. as the availability of tax credits. Nothing in the A.C.A. provided clear notice of that risk, and retroactively imposing such a new condition now would upend the bargain the states thought they had struck.”

There are abundant Supreme Court precedents that require Congress to give states “clear notice” of the consequences of the choices a federal law invites them to make. Justice Samuel A. Alito Jr. invoked that principle in a 2006 case interpreting the Individuals With Disabilities Education Act, a case cited by the 23 attorneys general. The government’s own brief, filed by Solicitor General Donald B. Verrilli Jr., observes that “it would be astonishing if Congress had buried a critically important statewide bar to the subsidies under this landmark legislation” in technical sub-clauses.

To accept the challengers’ narrative, the government’s brief asserts, “the court would have to accept that Congress adopted that scheme not in a provision giving states clear notice of the consequences of their choice, but instead by hiding it in isolated phrases.” The court should interpret the statute “to avoid the disrespect for state sovereignty” inherent in that unlikely account.

Among the two dozen other “friend of the court” briefs filed on the government’s behalf is one from a group of small business owners (significant because the earlier case against the Affordable Care Act was brought by a small-business federation) and several from the health care industry. The Catholic Health Association, representing 600 Catholic hospitals, along with Catholic Charities, filed a brief explaining the significance of the Affordable Care Act for health care providers that serve, as the Catholic hospitals do, a high proportion of low-income patients.

So will the Affordable Care Act survive its second encounter with the Roberts court? I said earlier that this case is as profound in its implications as the earlier constitutional one. The fate of the statute hung in the balance then and hangs in the balance today, but I mean more than that. This time, so does the honor of the Supreme Court. To reject the government’s defense of the law, the justices would have to suspend their own settled approach to statutory interpretation as well as their often-stated view of how Congress should act toward the states.

I have no doubt that the justices who cast the necessary votes to add King v. Burwell to the court’s docket were happy to help themselves to a second chance to do what they couldn’t quite pull off three years ago. To those justices, I offer the same advice I give my despairing friends: Read the briefs. If you do, and you proceed to destroy the Affordable Care Act nonetheless, you will have a great deal of explaining to do — not to me, but to history.



February 8, 2015 Posted by | Affordable Care Act, Congress, U. S. Supreme Court | , , , , , , , | Leave a comment

“Coward Of The House”: John Boehner’s Pathetic Lawsuit Reveals His Weakness

Never underestimate the cynicism of House Speaker John Boehner. The day after he told reporters he opposed the impeachment of President Obama, he announced plans to go ahead with an unprecedented lawsuit, on grounds so puny as to be laughable. The speaker will sue the president, he says, for postponing the imposition of the Affordable Care Act’s employer mandate for a year and waiving the fine it imposed.

So: after all of Boehner’s huffing and puffing about the president’s lawlessness, after an op-ed that claimed Obama had abused his power on “a range of issues, including his health care law, energy regulations, foreign policy and education,” he wants to sue him for not implementing a minor ACA provision Republicans are known to oppose, within a law they want to repeal entirely? And as NBC’s First Read notes, Boehner didn’t advocate suing President Bush in 2006 when he waived penalties for low-income seniors who missed the deadline to sign up for new Medicare prescription benefits.

Clearly Boehner’s silly lawsuit is a sop to his party’s right-wing base. But he’s throwing table scraps while the wing nuts want red meat. The GOP establishment, such as it is, has apparently decided impeachment is a bad political detour for the party. Yet few of the conservative voices now speaking out against impeaching the president have the courage to say: “It’s because he hasn’t done anything that would be grounds for impeachment.” Instead, they focus on the terrible politics for their party in a midterm election year when they’re expected to do well.

Boehner merely said “I disagree” when asked about Sarah Palin’s Facebook rant demanding that the House GOP impeach Obama – and then he fleshed out his alternative legal plan. The man who gave us Sarah Palin, Sen. John McCain, said Thursday: “There are not the votes here in the United States Senate to impeach the president of the United States and I think that we should focus our attention on winning elections.”

A Wall Street Journal anti-impeachment editorial did acknowledge, though almost in an aside, that “while Mr. Obama’s abuses of executive power are serious, they don’t rise to that level.” But the bulk of “The Impeachment Delusion” was spent on the bad politics of such a move, calling it “inherently a political process that at the current moment would backfire on Republicans,” given they have a decent chance of retaking the Senate.

Meanwhile, the WSJ is hyping Boehner’s lawsuit as essential to rein in Obama’s wanton use of “imperial powers.” The worshipful editorial, with the unintentionally hilarious headline “Boehner stands up,” opened “All due credit to John Boehner.”

That ought to win over the party’s right wing base. Then again, probably not.

The wimpiness of the GOP establishment just furthers the sense of the party’s implacable Obama haters that they have a claim against this illegitimate president, but the leadership is just too spineless and craven to drive him out of the White House. If he’s using “imperial powers,” as the Journal says, and he’s “changing and creating his own laws, and excusing himself from enforcing statutes he is sworn to uphold,” as Boehner claims, the House has a remedy, and it’s impeachment.

Establishment Republicans are praising Boehner’s lawsuit for finding a novel way to solve the problem that’s stymied all other congressional attempts to sue the president: their utter lack of standing to bring such a suit, given that they can’t show they’ve been harmed by the action at issue. Backed by right wing scholars David Rivkin and Elizabeth Foley, the speaker will make the case that since it’s not possible for any private individual to show harm in the case of the employer mandate, the courts should let Congress step in.

Few legal experts outside the confines of conservativism are convinced.

“I see this every day now, being covered as if it’s real, as if it’s somehow not a joke,” Yale law professor Akhil Reed Amar told “But can they name a single successful lawsuit in American history that is of close precedent to what they are proposing?” Amar doesn’t know of one. “At a certain point, I get to call Birther-ism. I get to call bullshit.”

I’ve been thinking about Birtherism a bit here, too. On the one hand, it’s great that Boehner quickly scotched Palin’s talk of impeachment. On the other, it would have been nice had he, and the rest of the party leadership, done the same when Birtherism, and talk of the president as Kenyan Muslim Kenyan usurper, broke out on the right wing fringe in 2009.

But Boehner refused to stand up to his party’s Birthers and Obama-is-a-Muslim loons. “It’s not my job to tell the American people what to think,” he said on NBC’s “Meet The Press” shortly after being elected speaker in 2011. Yet now he thinks it’s his job to tell the American people to think that the president is abusing his powers. Boehner’s stunt is impeachment-lite, or impeachment for cowards. Instead of quelling the fire burning in the party base, it is likely to stoke it.


By: Joan Walsh, Editor at Large, Salon, July 11, 2014

July 12, 2014 Posted by | House Republicans, Impeachment, John Boehner | , , , , , , , | Leave a comment

“An Endless Battle”: The Next GOP Scheme To Manufacture Obamacare “Horror Stories”

After the administration met a target of seven million new private insurance signups under the Affordable Care Act, and after pretty much every Obamacare “horror story” featured in a Koch-funded attack ad has turned out to be either completely false or extremely misleading at best, and after even some conservatives are telling their brethren to stop fooling themselves into thinking the ACA will inevitably implode, you might think that we could now start having a reasonable, factually grounded discussion about how we might improve the ACA going forward.

No such luck. In fact, there’s a new misleading “horror story” on its way: the worker whose hours are being cut back so their boss won’t have to comply with the ACA’s employer mandate. Watch out for it, because it’s coming.

Just as before, the decisions of private companies to attempt to screw over ordinary people are going to be blamed not on those companies, but on Obamacare. Before it was insurance companies, who tried to shunt their customers into overpriced policies when cheaper options were available on the exchanges. How many news stories did we see that featured someone’s anger at an insurer’s letter telling them they should sign up for a new, more costly plan, without even asking what other options the person had?

This time, the “horror story” will feature workers whose employers are trimming their hours back to avoid having to give them health insurance. Yesterday the House passed a bill, with every Republican voting in favor (along with 18 conservative Democrats) changing the law’s definition of full-time work from 30 hours a week to 40 hours a week. The purpose is to allow an employer to cut a full-time worker down to 39 hours and claim they’re “part time,” to avoid giving them health coverage (as it stands now, they’d have to cut them down to 29 hours).

President Obama would veto any such bill if it actually passed both houses. But still: this is the opening of a new front in the endless battle over the ACA.

So some context is in order. The ACA mandated that all companies with 50 or more workers offer health coverage. It’s vital to understand that this mandate actually affects only a small portion of workers, because most companies of that size already offer coverage. According to the Kaiser Family Foundation, 91 percent of firms with between 50 and 199 employees offer coverage today, before any mandate has taken effect. For companies with 200 or more employees, it’s virtually all of them (over 99 percent). Even most companies with fewer workers — 85 percent of those with between 25 and 49 employees — offer coverage.

So if, in the coming days, you see a story about an employer that’s trying to find ways not to cover their employees, the first thing to remember is that this an employer who is not giving their workers the benefits most people get. The second thing to remember is that the mandate has already been delayed. Companies with between 50 and 99 workers now have until 2016 to get their workers insured.

To be clear, there’s an argument for restructuring the employer mandate completely; there are other ways you could make sure that employees are covered. And as we learned in the Hobby Lobby case, the mandate isn’t truly a mandate; if a firm wants, it can decline to cover its workers, and pay a tax (which will cost a lot less than health coverage) to help defray the cost of them getting insurance through the exchanges.

I don’t even believe that people should be getting insurance through their employers at all; the fact that we do is an artifact of history that doesn’t have much practical rationale, particularly now (it started during World War II, when wage controls meant employers couldn’t give raises, so they began offering health benefits instead). But once coverage is required from all mid-size and large firms, it will be part of the cost of doing business for all of them — just as it is today for nearly all of them.

And by the way, this is true of lots of regulations: minimum wage laws, worker safety laws, laws against dumping toxic waste in the creek behind your factory, and a whole host of other laws that may increase a company’s expenses but get worked into the prices they charge for their goods and services.

As long as this is the system we have and there’s a mandate scheduled to take effect in 2016, we should be honest about what it means. If the claims about people getting dropped from individual coverage have taught us anything, it’s that whenever we see a new “Obamacare horror story,” it’s probably bogus. And this one will be no exception.


By: Paul Waldman, The Plum Line, The Washington Post, April 4, 2014

April 7, 2014 Posted by | Affordable Care Act, GOP, Obamacare | , , , , , | 1 Comment

“50th Time Is The Charm”: For House Republicans, The Affordable Care Act Is Not About Policy And Governing Isn’t Their Goal

Last week, after House Republicans announced an upcoming vote on undermining the Affordable Care Act, President Obama took some time to mock GOP lawmakers for their pointless hobby. “You know what they say: 50th time is the charm,” he joked at a DNC event. “Maybe when you hit your 50th repeal vote, you will win a prize. Maybe if you buy 50 repeal votes, you get one free. We get it. We understand. We get you don’t like it. I got it.”

But by all appearances, Republicans aren’t concerned about mockery. They’re proceeding today with their plan to go after the ACA’s individual mandate – again. By most counts, it will be the 50th time House Republicans have voted to gut some or all of the health care law since 2011, even though they fully realize their bill has no chance of being signed into law.

The House is set to vote Wednesday on a bill by Rep. Lynn Jenkins (R-KS) to effectively delay the individual mandate for one year by reducing the penalty in 2014 for not buying insurance from $95 to $0.

The Republican-led chamber passed a similar bill last July, capturing 22 Democratic votes. Now that it’s an election year, it’s plausible that a significant number of Democrats will defect, given the unpopularity of the individual mandate and the likelihood that Senate Democrats will throw the bill in the garbage once it arrives.

House Republicans are under no illusions about the legislation’s prospects, but governing isn’t the goal. This is about an election-year stunt intended to help GOP lawmakers feel better, maybe motivate the base a bit, and create the basis for some new attack ads against Democrats.

Whether or not one approves of this waste of time, it remains a ridiculous display.

For one thing, the effort itself would be a substantive disaster if the bill actually became law. Clearly the GOP is in its post-policy phase, so real-world implications are no longer considered before bills receive votes, but the Center on Budget and Policy Priorities published an analysis yesterday and found that the House’s proposal would increase the number of Americans without insurance and lead to higher health care premiums in the individual market. How do Republican leaders respond to revelations like these? They don’t – this isn’t about policy, so the implications are deemed irrelevant.

For another, this is quite a bit of effort over a policy Republicans supported up until a few years ago – the mandate used to be a key feature of GOP health care plans.

House Republicans could be using their time wisely right now. Maybe they could work on real legislation; maybe they could present their “Obamacare” alternative they’ve been promising for years.

But that just doesn’t seem to interest them. Americans are instead stuck watching their House of Representatives spin its wheels, picking up self-satisfying “message” bills.


By: Steve Benen, The Maddow Blog, March 5, 2014

March 6, 2014 Posted by | Affordable Care Act, Obamacare | , , , , , , | 1 Comment

“Imminent ‘Death Spiral’ Premature, Over-Hyped”: Young People Are Just Procrastinating On ObamaCare

ObamaCare enrollees are, so far, generally older and therefore potentially less healthy than the general public. And on the flip side, only one-fourth of sign-ups are in the crucial 18-35 year-old age bracket, well below the administration’s roughly 40 percent target, according to new enrollment data released Monday.

Given the top-heavy enrollment figures, critics and skeptics are again raising a doomsday scenario in which an elderly pool of enrollees, without adequate subsidization from healthier, younger people, causes premiums to skyrocket so much the entire system crumbles.

“Hello, Death Spiral,” snarks a National Review headline.

Terrifying, right?

However, the administration expected that young people would procrastinate until the last minute, while older and sicker people would be more motivated to get coverage as soon as possible. People have until the end of March to sign up for ObamaCare before the individual mandate’s penalty kicks in, so assuming that works as something of a metaphorical term paper deadline, there could very well be a surge of young people into ObamaCare in the next couple of months.

Massachusetts’ experience implementing Romneycare in 2006 offers some historical precedent. As an analysis by MIT economics professor Jonathan Gruber shows, the percentage of Romneycare sign-ups in the 19-34 year-old bracket hovered in the low 20s for the first few months before gradually rising into the mid-30s range by the end of the year.

ObamaCare, likewise, saw an eight-fold increase in young adults enrolling in December compared to the two months prior, indicating that young people were indeed waiting until the last minute. Hence Aaron Smith, head of the nonprofit Young Invincibles, whose goal is getting uninsured young people enrolled, says the latest numbers show they “are on the right track.”

The White House is also planning to up its outreach to young people, including a National Youth Enrollment Day on February 15. That should help drive up youth enrollment above its current level.

And even if that effort fizzles, it’s still extremely unlikely the death spiral will materialize if the current enrollment demographics remain unchanged. A December report form the nonpartisan Kaiser Family Foundation concluded that “the financial consequences of lower enrollment among young adults are not as great as conventional wisdom might suggest.” Even in a worst-case scenario where young people comprise 25 percent of the overall pool, Kaiser estimated premiums would rise marginally, or “well below the level that would trigger a ‘death spiral.'”

There are two months of open enrollment left, so proclaiming dire predictions is a tad premature at this point. And even if the supposedly deadly enrollment demographics remain unchanged come April, and premiums go up, it almost certainly won’t imperil the law.


By: Jon Terbush, The Week, January 14, 2014

January 15, 2014 Posted by | Affordable Care Act, Obamacare | , , , , , , | Leave a comment

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