“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.
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“Deadly Consequences”: Public Health Experts Have Estimated How Many Americans Will Die If The Supreme Court Repeals Obamacare
When conservative American Enterprise Institute scholar Michael Strain published an article last week titled, “End Obamacare, and people could die. That’s okay.” he made two critical errors: He embedded a genuinely extreme view into a banal one, and then demanded absolution for both without defending the former.
Strain’s larger point is so uncontroversial, it barely needs reprising: Obamacare was not the final word in U.S. health policy, and if Republicans want to replace the Affordable Care Act with a different, less redistributive set of reforms, they should be able to try, without necessarily catching hell for preferring a system that tolerates marginally more avoidable deaths than Obamacare does (especially if they ply fiscal savings into different programs that alleviate poverty, or improve general welfare).
This is an unobjectionable point. Had Strain argued that the Republican presidential nominee should make an Obamacare alternative the centerpiece of his 2016 platform, nobody would have called it immoral. But the premise of his article is that conservatives (including himself, presumably) will be pleased if the Supreme Court intervenes to gut Obamacare, because it would provide Republicans the missing leverage they’ll need to impose a replacement through the political branches.
First comes god from the machine, and only then comes an Obamacare replacement.
If such a dramatic predicate carried no consequences, Strain’s cost-benefit argument would stand on its own. But when you account for the damage the Supreme Court would incur in order to provide Republicans their missing leverage, it collapses completely.
In a brief to the Supreme Court, dozens of public health scholars, along with the American Public Health Association, detail the harm the Court would create by ruling for the challengers in King vs. Burwell. Most of their analysis is rooted in the basic point that stripping insurance away from eight million people would dramatically impede their access to the health system. But they also flesh out the corollary argument that an adverse ruling would have deadly consequences, and ballpark the number of avoidable deaths such a ruling would cause.
“Researchers found that, in the first four years of the [health care reform] law in Massachusetts, for every 830 adults gaining insurance coverage there was one fewer death per year,” the brief reads. “Using the national estimate that 8.2 million people can be expected to lose health insurance in the absence of subsidies on the federal marketplace, this ratio equates to over 9,800 additional Americans dying each year. Although the specific policy context and population impacts of any policy cannot be directly extrapolated from one setting to another, the general magnitude and power of these findings from the Massachusetts study demonstrate that even when approached cautiously, these earlier findings carry enormous public health implications for withdrawing subsidies and coverage from millions of Americans.”
The Massachusetts story wouldn’t unfold precisely in reverse everywhere the subsidies disappeared, but the experience there suggests the Supreme Court ruling would have measurable mortality implications. These costs (read: deaths) couldn’t be paired against the benefits of increased spending on anti-poverty programs. These are the costs conservatives are eager to inflict on others simply to gain the leverage they need to advance an alternative that the status quo forecloses.
Responding to critics in a followup article, Strain brushes this all aside by stipulating that Republicans would never allow all this suffering. “I think it’s very likely that the congressional GOP would enact some sort of replacement if the Supreme Court strikes down Obamacare,” he writes. “They would very likely take measures to address the needs of those who lost their subsidies as a result of the Court’s action.”
To back up his suspicions, he cites a suspiciously limited set of news reports, quoting Republicans who claim to be working on such a plan—or, at least “talking about how to build consensus on a replacement.”
He does not quote from this Wall Street Journal article titled, “Republicans to Block Legislative Fix to Health-Care Law,” or this article by TPM’s Sahil Kapur titled, “Republicans Are At A Loss On What To Do If SCOTUS Nixes Obamacare Subsidies.”
For those who haven’t been keeping score all along, Republicans have spent the past several years cyclically promising and then failing to deliver an Obamacare alternative. They didn’t have an alternative prepared in 2012 when conservatives asked the Court to declare Obamacare unconstitutional. They didn’t have an alternative prepared later in the year, when Mitt Romney was their presidential candidate. They didn’t have an alternative prepared when they shut down the government as part of an ill-fated effort to defund Obamacare. They didn’t run on an Obamacare alternative in 2014. And they don’t have an Obamacare alternative prepared this week, though they’re scheduled to pass another repeal bill on Tuesday.
The story’s a little different today in that the subsidies really could disappear by fiat, harming millions of people, under GOP control of Congress. Republicans genuinely haven’t encountered a motivating force this strong in the five years since Obamacare became law. If in defiance of such a remarkable pattern, Republicans manage between now and June to come up with a workable plan or a stopgap—one that President Obama will sign—they will have filled the hole in Strain’s argument. Five months might seem like a long time in politics, but remember: It took Democrats more than twice that to pass Obamacare, and almost 10 times as long thereafter to implement it.
By: Brian Beutler, The New Republic, February 2, 2015
“What Happens If The Dog Catches The Car?”: GOP Faces Health Care Challenge It’s Totally Unprepared For
We don’t yet know what the Supreme Court will do in the King v. Burwell case, but we have a fairly good sense what will happen if the Supreme Court sides with Republicans. In effect, there will be chaos that could do considerable harm to insurers, families, state budgets, the federal budget, hospitals, and low-income children.
It sounds melodramatic, but the fact remains that if the GOP prevails, more Americans will literally go bankrupt and/or die as a result of this ruling.
With this in mind, I couldn’t help but find some sardonic humor in the House Republicans’ request for information from the Obama administration yesterday.
Senior House Republicans are demanding that the Obama administration reveal its contingency plans in the event that the Supreme Court scraps Obamacare subsidies in three dozen states. […]
“Specifically, we are examining the extent to which the Department of Health and Human Services (HHS), and other relevant agencies of the federal government, are preparing for the possible consequences of the Supreme Court’s decision in the case of King v. Burwell,” wrote the lawmakers.
The fact that the GOP lawmakers didn’t appreciate the irony was itself unfortunate, but the simple truth is that the underlying question – what happens if the Supreme Court takes this stupid case seriously and guts the American health care system? – is one Republicans should be answering, not asking.
If we had a normal, functioning political system, represented by two mainstream governing parties, the solution would be incredibly simple. If the Supreme Court said the language in the Affordable Care Act needed clarification, lawmakers would simply approve more specific language before Americans felt adverse consequences. The legislative fix would be quite brief and the whole process could be wrapped up in an afternoon.
No one, in this scenario, would actually suffer.
But in 2015, Americans don’t have the benefits of a normal, functioning political system, represented by two mainstream governing parties. On the contrary, we have a dysfunctional Congress led by a radicalized, post-policy party that has no use for governing, and which welcomes adverse consequences no matter how many Americans suffer.
And the question for them is what they intend to do if, like the dog that catches the car, Republican justices on the Supreme Court rule their way in the King v. Burwell case. Sahil Kapur had a terrific report on this overnight.
Many Republicans would view it as a dream come true if the Supreme Court were to slash a centerpiece of Obamacare by the end of June. But that dream could fade into a nightmare as the spotlight turns to the Republican Congress to fix the mayhem that could ensue.
“It’s an opportunity that we’ve failed at for two decades. We’ve not been particularly close to being on the same page on this subject for two decades,” said a congressional Republican health policy aide who was granted anonymity to speak candidly. “So this idea – we’re ready to go? Actually no, we’re not.”
Republican leaders recognize the dilemma. In King v. Burwell, they roundly claim the court ought to invalidate insurance subsidies in some three-dozen states, and that Congress must be ready with a response once they do. But conversations with more than a dozen GOP lawmakers and aides indicate that the party is nowhere close to a solution. Outside health policy experts consulted by the Republicans are also at odds on how the party should respond.
Republicans could approve a simple legislative fix, but they don’t want to. Republicans could introduce their ACA alternative, but they don’t want to do that, either. They could encourage states to create their own exchange marketplaces, largely negating the crisis, but they don’t want to do that, either.
So what do GOP lawmakers want? They haven’t the foggiest idea.
Kapur talked to a GOP aide who works on health care policy on Capitol Hill who said, “Our guys feel like: King wins, game over, we win. No. In fact: King wins, they [the Obama administration and Democrats] hold a lot of high cards. And we hold what?”
Millions of families who would be screwed by Republican victory in this case will be eager to hear an answer to that question.
By: Steve Benen, The Madow Blog, January 29, 2015
“Playtime Is Over For Obamacare’s Foes”: And Still, Republicans Don’t Have A Serious Plan B
Friends of Obamacare, horrified that the Supreme Court has taken a case that could blow up the federal health insurance exchanges, should recalibrate their dread. While the health reforms were safely humming along, there was little political price for demanding their demise. Thanks to the Supreme Court, now there is.
Years of carpet-bombing assaults on Obamacare have left many Americans thinking that they don’t like the Affordable Care Act. But close down the federal exchanges covering 6 million people (so far) in 36 states and they may think otherwise. With a vengeance.
Here are the stakes in King v. Burwell: Should the justices strike down subsidies for coverage in the federal exchanges, only the very sick would hang in. That would be the end of the federal exchanges.
Donald Taylor, a health policy expert at Duke University, likens the Obamacare attackers to a dog chasing a car. “What’s the dog going to do if it catches the car?” he said to me.
Subsidies would be untouched in the 12 or 14 state-run exchanges (depends on how you define them), the majority of which are in blue states. Red-state politicians — oddly the biggest foes of a law that in effect transfers tax dollars from high-income liberal states to poor conservative ones — would have a mess on their hands.
“Some Southern states will be back up to 20 percent uninsured,” Taylor said, “and that doesn’t sound politically stable.”
The solution for Republicans would be a plan B. But they don’t have a serious plan B.
Republicans do have a proposal of sorts, composed early last year by three senators — Richard Burr of North Carolina, Orrin Hatch of Utah and now-retired Tom Coburn of Oklahoma. But it was written mainly as a political document with which to hit Obamacare over the head during the 2016 campaign — not as a ready-to-plug-in substitute.
Let’s look at the Republican plan that we aren’t supposed to examine too closely.
For starters, it would empower private insurers to play a bigger role in the relationship between you and your doctor — encouraging them to shrink the network of doctors and hospitals you may visit. So much for “choice.”
It also would cut government subsidies for many working stiffs who earn too much to claim poverty but too little to afford decent private coverage. And it would enable insurers to charge older people far more for their insurance. Obamacare lets them charge three times as much. The Republican plan would let them charge five times as much.
Gone would be the minimal coverage standards. That means the insurers could more easily deny payment for services that Obamacare considers basic. For all these gifts to private insurers, the industry actually prefers Obamacare because its subsidies create many more customers for their products.
The Republican replacement plan (as written so far) contains lots of other controversial elements pretty much ignored because few have taken it seriously. For example, it would tax employer-sponsored health benefits. (Obamacare’s “Cadillac tax” on luxurious coverage does some of that, for which it continues to take a beating.)
A group of conservative economists, led by Douglas Holtz-Eakin, has scored the Burr-Hatch-Coburn plan and claims that it would cut deficits by $1 trillion. These are reputable economists, Taylor says, but the text they were working with was “incredibly vague” on where the cap on the taxes would be put.
“The score is a number, and the text on which they did the score was ambiguous,” he said. “It shows just how hard this is.”
So now Obamacare won’t be the only piñata in town.
The Supreme Court will take up King v. Burwell in March. We do live in interesting times.
By: Froma Harrop, The National Memo, January 8, 2015
“When Will They Ever Learn?”: Republicans Finally File Lawsuit Against Obama – And Stand To Gain Almost Nothing
Back in June, House Republicans announced, with deep regret yet great fanfare, that they were going to sue Barack Obama over his tyrannical usurpation of power. The suit was never actually filed; two lawyers the House had hired ended up quitting, and it looked as if it would fade away.
Then this week Republicans announced that they had found another lawyer to take the case, George Washington University law professor Jonathan Turley, who says he’s a liberal but has become an intense critic of the Obama administration. Just four days later, the lawsuit has finally been filed:
House Republicans filed a long-threatened lawsuit Friday against the Obama administration over unilateral actions on the health care law that they say are abuses of the president’s executive authority.
The lawsuit — filed against the secretaries of the Health and Human Services and Treasury Departments — focuses on two crucial aspects of the way the administration has put the Affordable Care Act into effect.
The suit accuses the Obama administration of unlawfully postponing a requirement that larger employers offer health coverage to their full-time employees or pay penalties. (Larger companies are defined as those with 50 or more employees.)
In July 2013, the administration deferred that requirement until 2015. Seven months later,the administration announced a further delay, until 2016, for employers with 50 to 99 employees.
The suit also challenges what it says is President Obama‘s unlawful giveaway of roughly $175 billion to insurance companies under the law. According to the Congressional Budget Office, the administration will pay that amount to the companies over the next 10 years, though the funds have not been appropriated by Congress. The lawsuit argues that it is an unlawful transfer of funds.
Call me cynical, but I can’t help but think that the newfound urgency to move ahead with the suit has something to do with President Obama’s immigration order. If conservative Republicans aren’t satisfied with whatever confrontation their leaders manage to create with Obama over immigration, John Boehner can say, “Don’t forget, we’re suing him!”
But what do Republicans get if they win this suit? Not much more than a symbolic victory. The actual complaints in the suit were always strange — they’re suing Obama for delaying the employer mandate, a provision they despise. If they won, he’d be forced to speed up implementation of the mandate, even as Republicans are pressing to eliminate it altogether. And by the time the suit winds its way through the courts, the issue will probably be moot. The mandate for employers with over 100 workers goes into effect in January (though they are only required to cover 70 percent of their employees, and almost all companies of that size already provided coverage even before the law was passed). And the mandate for the mid-size companies goes into effect in a year. By the time the case is heard by a high court, the remedy it’s seeking will probably have already taken place.
As for the other of the suit’s complaints, on cost-sharing subsidies, if Republicans are successful in killing them it would mean that poor people would have to pay more in copays and deductibles. But unlike the subsidies in three dozen states that are at issue in the King v. Burwell lawsuit, which the Supreme Court recently agreed to hear, this provision isn’t critical to the law’s basic functioning. So apart from the satisfaction some Republicans might receive from making life harder for the working poor, even if they win this lawsuit they won’t have dealt the ACA a serious blow.
Legal experts who have looked at this suit haven’t found much merit in it, particularly on the claim about the employer mandate. Federal agencies frequently delay the implementation of far-reaching regulations while practical problems are worked out. But even if they prevail, all Republicans stand to gain is the ability to say that they beat Barack Obama in court. Which may be more than nothing, but it isn’t much more than that.
By: Paul Waldman, Contributing Editor, The American Prospect; The Plum Line, The Washington Post, November 21, 2014
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