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“The Obamacare Resistance Regroups”: Delving Even Deeper Into Denial

The 16th Amendment to the Constitution, authorizing the federal income tax, was ratified in 1913. Still, every once in a while, the news will report the arrest of some right-wing kook who has failed to pay his income tax on the grounds that it’s illegal. Also in 1913, the 17th Amendment, requiring the popular election of senators (who before then were often appointed by state legislatures) took effect. And yet many conservatives still want to repeal it — and not just kooks, or at least influential kooks and not just completely marginal and obscure kooks. And those things happened more than a century ago.

So how long will the Obamacare resistance live on? A long, long time.

Obamacare has survived when it appeared to be dead in Congress in 2009, then even more dead the next year, and then survived a Supreme Court case, a presidential election, a rollout crisis, and another Supreme Court case. National Journal’s Josh Kraushaar has lovingly tended the flickering flame of health-care repeal for years. In 2013, he predicted that barring “an unlikely fourth quarter comeback,” Congressional Democrats would soon join with Republicans to repeal the law over a presidential veto. In the wake of the King v. Burwell verdict, Kraushaar regroups with a new column laying out a path. Kraushaar refers repeatedly to the law’s “unpopularity,” which is … barely correct:

Proceeding from this shaky premise, he argues that, if they win the presidency, enough Senate Democrats might join Republicans to create a filibuster-proof supermajority:

The third group, which Sasse labels the “Replacement Caucus,” would make significant changes to the law after campaigning on a reform-oriented health care agenda in the presidential election. That’s the most tenable approach — and the fact that Sasse, a hard-line Senate conservative, is calling for something other than outright repeal is telling. (Sasse still supports repealing the law but only with a replacement plan in hand.)

If Republicans win the presidency, the political momentum — and votes for rolling back core elements of Obamacare — would be in place. In that scenario, Republicans would have won three out of four elections, and a depleted Democratic Party would be in disarray. Republicans could credibly claim a health care mandate, given how prominently the issue played in recent elections.

Kraushaar allows that these “significant changes” to Obamacare would fall short of repeal, though he does not indicate what those changes would entail. He links to a National Review column by Republican Senator Ben Sasse, which also fails to describe what changes should be implemented. The closest Sasse comes to specifying a proposal is calling for an “understandable, common-sense, patient-centric alternative.” Of course, Republicans have been urging other Republicans to come up with a common-sense, patient-centric health-care plan since the health-care debate began six years ago. They have remained stuck in the same unsolvable problem: Their actual health-care policy ideas are either all less popular than the specific policies in Obamacare, unworkable, or both. When Republicans start naming actual policy changes they would implement, they would do things like let insurance companies deny coverage to people with preexisting conditions, or stop covering popular services like maternity care. That’s why the only specific partial changes Republicans actually want to vote on simply attack the law’s financing provisions. They’re not willing to eliminate Obamacare’s benefits, but they’re happy to stop paying for them. That plan (keep the benefits, oppose the taxes) is pretty much the party’s approach to other established social insurance programs like Medicare and Social Security. If Republicans win the presidency, they may bite the bullet and repeal Obamacare because their base demands it, but they won’t have Democrats on their side and it won’t be popular.

Even farther into denial is Michael Cannon, a Cato Institute scholar who played a leading role in promoting the King v. Burwell lawsuit. The basis for that lawsuit was seizing on an errant line of text implying that tax credits would be available only for customers using state-established exchanges, ignoring many other parts of the law, as well as massive amounts of evidence before, during, and after the debate implying the opposite. For a while, Cannon, the founder of the anti-Universal Coverage club, nurtured hopes of un-insuring 6 million Americans. He finds himself in the position of a despondent young Montgomery Burns mourning the destruction of his biological weapon (“My germs, my precious germs! They never harmed a soul. They never even had a chance!”)

Cannon, unlike Burns, does not seem to be accepting defeat. His Twitter bio continues to describe him as “the man who could bring down Obamacare,” a now-moot prediction. His new column argues, “Even in defeat, King threatens Obamacare’s survival, because it exposes Obamacare as an illegitimate law.” Cannon bases this claim on the fact that he believes, or purports to believe, that Obamacare is not what the Supreme Court says it is but a chimerical, never-implemented, doomed-to-fail alternative that will live on forever in his dreams. A century from now, right-wingers will emerge from their fortified mountain compounds, clutching Cannon’s writings and claiming to be following the True Obamacare.

 

By: Jonathan Chait, Daily Intelligencer, New York Magazine, July 10, 2015

July 11, 2015 Posted by | Affordable Care Act, King v Burwell, Republicans | , , , , , , , , | 1 Comment

“An Alternate History”: The 3 Stages Of ObamaCare Trutherism

As we approach the March 4 oral arguments for King v. Burwell, the Supreme Court case that may decide the fate of ObamaCare, it’s worth delving further into a legal argument that approaches 9/11 truther levels of insanity.

As I observed in a recent piece for The Week, there are two ways that the argument can proceed in its attempt to establish that the Affordable Care Act does not authorize health insurance subsidies on federally established state exchanges. The first is to say that no matter what lawmakers intended to accomplish, they mangled the letter of the law to say that the subsidies will not flow to such exchanges. Whoops.

The other argument, fully embraced by the law’s opponents at the Supreme Court, is that legislators intended to deny subsidies to the states — even though that would go against everything they set out to accomplish.

These are both terrible arguments; one would deny millions of people health insurance over the equivalent of a typo, while the other flies in the face of common sense and the historical record. But they permit opponents of the ACA to switch from one to the other as a means of evading devastating objections to any individual argument.

A classic example of a pundit engaging in this dance is Ramesh Ponnuru, who tries to split the difference between the two variants. His column in Bloomberg is a useful distillation of the three stages of Affordable Care Act trutherism.

Ponnuru starts out by suggesting that the letter of the law is clear — “nowhere does the law authorize subsidies for plans purchased on those federally run exchanges.” But you can arrive at this conclusion only by using terrible, unworkable methods of statutory construction. You don’t have to take my word for it — the brief submitted by major legal scholars, including Ronald Reagan’s solicitor general and one of the country’s foremost experts in statutory construction, explains this in clear detail.

When you focus on the statute as a whole, rather than on the isolated phrase that appears to confine subsidies to the exchanges established by state governments, it is clear that exchanges established by the federal government on the state’s behalf are “[e]xchange[s] established by the State,” as the statute defines them. Indeed, the ACA is an excellent illustration of why phrases in statutes should be read in context. Doing so produces a coherent reading of the statute’s purpose, whereas the reading of the ACA’s opponents, represented by Jonathan Adler and Michael Cannon, produces numerous anomalies and puts the statute at war with itself.

There’s a reason why Adler and Cannon haven’t been content to rest on the typo argument. It sounds superficially plausible in a seminar room, but in the broader world, people are going to wonder why literally none of the relevant federal or state officials read the statute in accordance with its allegedly clear and unambiguous meaning. (If the statute is not clear and ambiguous, under well-settled precedent the courts are supposed to defer to the judgment of the IRS, which will be responsible for administering the subsidies.)

As a sort of way station between the two arguments, then, Ponnuru proceeds to an argument we can label, “Looks like those clowns in Congress did it again. What a bunch of clowns.” In other words, various members of Congress had different intentions, many weren’t really paying careful attention — who can say what Congress was really trying to do? As Ponnuru writes, lawmakers are “generally not detail-oriented people.”

There is a grain of truth to this argument — Congress is a “they,” not an “it,” as social scientists say, and we should be careful in making broad generalizations. Nonetheless, everybody makes reasonable judgments about what Congress is trying to accomplish, not least because it would otherwise be impossible to practice law or interpret history. We can understand why the Wilmot Proviso, for example, broke down on sectional rather than partisan lines without claiming to know the precise subjective intentions of each and every member of Congress.

And in this case, the idea that we can’t reasonably infer what Congress was trying to do is absurd. The amicus brief written by Nicholas Bagley, Thomas Merrill, Gillian Metzger, and Abbe Gluck is particularly strong on this point. Federal backstops are not some mysterious new innovation of the ACA — they’re a bog standard part of cooperative federalism. They’re inserted in statutes when Congress wants to ensure that benefits of programs administered primarily by states will flow to citizens even if the states decline to participate.

Congress did not intend for the federal backstop to fail, and it was universally understood that the insurance exchanges could not work without tax credits and the individual mandate. There’s only a mystery here if you hate the ACA so much that you’ve become willfully blind to what it’s trying to accomplish and how it relates to previous statutes in the New Deal/Great Society tradition.

As such, it makes sense that the ACA’s opponents would develop an alternate history that can actually reconcile their reading of the statute with an explanation of Congress’ intentions. The Supreme Court is much less likely to strip insurance from millions of people based on what the architects of the suit initially identified as a “glitch,” than if it convinces itself that it’s upholding the will of Congress.

Ponnuru doesn’t go quite so far as to say that he’s “100 percent certain” about what the ACA’s drafters were setting out to accomplish, but he does argue that the Adler/Cannon interpretation makes sense. Denying subsidies on federally established exchanges, Ponnuru asserts, is “not at all absurd in principle.” After all, states that don’t comply with the requirements of Medicaid don’t get the money — why shouldn’t we think that the same principle of coercion is at work in the exchanges?

But the contrast with the ACA’s Medicaid expansion destroys Ponnuru’s argument rather than fortifying it. The Medicaid expansion shows how Congress proceeds when it’s actually trying to coerce states. To state the obvious, if you’re making a threat, you don’t keep the consequences of failing to comply a secret. On the flip side, legislators were well aware that some states would not or could not establish their own exchanges, and this is why they wanted to establish a backstop.

The weakness of all these arguments explains why apologists for the latest legal war on the ACA like to alternate between them. If a critic points out that you should take the context of the entire statute into account, just say that Congress was consciously trying to coerce the states, not create a federal backstop. When people point out that this is nonsense, return to asserting that Congress messed up the language. Repeat as necessary.

Hopefully, at least five justices will see through this game of legal three-card monte.

 

By: Scott Lemieux, The Week, February 20, 2015

February 23, 2015 Posted by | Affordable Care Act, King v Burwell, Republicans | , , , , , , , , | Leave a comment

“What A Shocker”: Obamacare Is Working Best In States That Aren’t Trying To Sabotage It

The disappointing Affordable Care Act (ACA) numbers the Department of Health and Human Services (HHS) released on Wednesday revealed that the law is working best in the states that are — shockingly — implementing the law as it was designed.

Of the 106,185 people who have completed an application for health insurance, nearly 75 percent came from 14 states and the District of Columbia that both set up their own exchanges and expanded Medicaid.

Unsurprisingly, California and New York combined for the bulk of the enrollments, 51,769. But the most promising news from the Golden State wasn’t even included in this report.

Peter Lee, the executive director of Covered California, reported Wednesday that as of Tuesday, 60,000 Californians had signed up for insurance. Signups have increased to a rate of almost 2,500 enrollees per day in November. At that pace, the state could be expected to enroll 402,500 people by March 31 but Lee says that he expects to hit a goal of 500,000 to 700,000 people by then, which means he expects the pace to pick up by at least 640 people a day to over 3,000 enrollees.

Lee’s optimism is linked to more than the enrollment numbers. It seems California’s consumers are happy with the state’s website.

“Overall, nearly 70 percent of consumers who completed the survey found the application process easy to complete, and 88 percent of customers visiting CoveredCA.com found the information needed to choose a health plan that was right for them,” Covered California reported in a statement released Wednesday, giving Republicans another reason to hope that California isn’t a bellwether for the rest of the nation.

Red Kentucky is the only state in the union that voted for Mitt Romney and set up its own exchange, thanks in large part to Democratic governor Steve Beshear. The state’s site signed up a total of 32,485 Kentuckians, with 5,586 enrolling in private plans, in its first month of operation. This reduces the state’s uninsured population —estimated at 640,000 — by just over 5 percent.

Of course, it’s not hard for the states to look impressive next to the federal number that is anemically low. And not all the states that set up their own exchanges have succeeded. Oregon’s marketplace is so flawed, they didn’t even have numbers to report for October.

Implementing health care reform was never supposed to be easy.

“It’s like fixing an airplane while it’s in flight, if there is something terribly wrong with the plane,” said Timothy Jost, a health law professor at Washington & Lee University and an expert on the ACA.

And that’s without the unprecedented campaign of sabotage the right has waged. But the obstruction that has threatened the law most has been the combination of a mostly unforced error — Healthcare.gov’s disastrous launch — and Republican states refusing to launch their own exchanges. While the right is thrilled they’ve assisted in this catastrophe, it was the ancillary result of another sabotage strategy that was either masterminded or enthusiastically encouraged by Michael Cannon.

Who?

“Cannon is a health care policy expert at the libertarian Cato Institute,” reports The New Republic‘s Alec MacGillis. “He is also an avowed opponent of the Affordable Care Act, and has for several years now been embarked on a legal crusade that, while a ways from triumphing, may have inadvertently played an outsized role in suppressing the number of states setting up their own exchanges, thereby greatly confounding the law’s implementation.”

Cannon believes he has found a loophole in the law that could end up undoing it in any state that didn’t set up an exchange. With that in mind, he helped successfully convince every state with a Republican governor to reject their right to build their own site.

By opting out, states made the success of the president’s signature legislative accomplishment dependent on one single portal that needed to reach its tentacles into three dozen complex insurance markets at one time.

That — it turns out — is a lot more complicated than the administration expected it to be.

The best state numbers show that the ACA can be implemented with participation rates that are in at least in the same ballpark as Massachusetts’ Romneycare or Medicare Part D.

Medicare Part D Romneycare implementation

And there were some other numbers in the HHS report that bode well for reform.

HHS reports that 26,876,527 different users accessed the site and 3,158,436 calls were made to its center. A total of 1,477,853 applications processed to the point of where eligibility could be determined. This shows that the demand for what the marketplace is offering definitely exists.

Clearly and undeniably, the fate of the law now depends most on one thing.

“The October report is clearly disappointing,” Timothy Jost wrote in his blog. ”But the really important reports will be the December report, which will tell us how many will be enrolled for coverage that begins in January, and the March report, which will tell us how many will be enrolled for 2014.  If healthcare.gov is up and running by December, there is every reason to believe those reports will be much more promising.”

 

By: Jason Sattler, The National Memo, November 14, 2013

November 15, 2013 Posted by | Affordable Care Act, Obamacare, Republicans | , , , , , , | Leave a comment

Put-up-Or-Shut-up Time For Republicans On Health-Care Reform

It’s put-up-or-shut-up time for Republicans. They managed to make it through the health-care debate without offering serious solutions of their own, and — perhaps more impressive — through the election by promising to tell us their solutions after they’d won. But the jig is up. They need a health-care plan — and quickly.

The GOP knew this day would come. In May 2009, Republican message-maestro Frank Luntz released a polling memo warning that “if the dynamic becomes ‘President Obama is on the side of reform and Republicans are against it,’ then the battle is lost.” Repeal, Luntz argued, wouldn’t be good enough. It would have to be “repeal and replace.” And so it was.

That, however, is easier said than done.

To understand the trouble the Republicans find themselves in, you need to understand the party’s history with health-care reform. For much of the 20th century, Democrats fought for a single-payer system, and Republicans countered with calls for an employer-based system. In February 1974, President Richard Nixon made it official. “Comprehensive health insurance is an idea whose time has come in America,” he said, announcing a plan in which “every employer would be required to offer all full-time employees the Comprehensive Health Insurance Plan.”

In a moment of historically bad judgment — Ted Kennedy later called it his greatest political regret — Democrats turned him down. They thought they could still get single payer. They were wrong.

By the 1990s, they had learned from their mistake. Bill Clinton took office and, after a wrenching year of negotiations, announced legislation similar to Nixon’s.

”Under this health-care security plan,” Clinton said, “every employer and every individual will be asked to contribute something to health care.”

But Republicans again balked, calling instead for a system of “individual responsibility.” Senate Republicans quickly offered two bills — the horribly named Health Equity and Access Reform Act and the Consumer Choice Health Security Act — based on the idea that every person who has the means to buy health insurance should have to do so. We now call that concept “the individual mandate.”

Both bills attracted 20 or more co-sponsors. Neither passed, as Republicans yanked their compromise legislation the moment Democrats became desperate enough to consider it. The individual mandate, however, didn’t go away. It kicked around conservative health-care policy circles, racking up endorsements from the conservative Heritage Foundation and the libertarian magazine Reason. A year later, the mandate showed up in a law that then-Gov. Mitt Romney signed in Massachusetts. And then it was in the bipartisan proposal that Utah Republican Bob Bennett and Oregon Democrat Ron Wyden introduced in the Senate. And next, it was the centerpiece of the Democrats’ health-care reform push. Consensus, it seemed, was at hand.

Or not. Republicans turned on the individual mandate again. Senators who’d had their names on a bill that included an individual mandate — Orrin Hatch, Chuck Grassley, Bob Bennett, Mike Crapo, Bob Corker, Lamar Alexander, Olympia Snowe and Kit Bond, to name a few — voted to object, calling the policy “unconstitutional.” Romney had to explain away his signature accomplishment as governor of Massachusetts. And Republicans found themselves without a fallback.

The party’s current mood on health-care policy is perhaps best expressed by the efforts that Michael Cannon, an influential health-care wonk at the libertarian Cato Institute, has made to enlist members in his “anti-universal coverage club.”

Enter Wyden-Brown, an Affordable Care Act amendment that the White House has made a big show of endorsing: It says that any state that can produce a credible plan to cover as many people, with as comprehensive insurance, at as low a cost as the Affordable Care Act can wriggle out of all the law’s mandates but still receive all the law’s money. Vermont’s governor, for one, is stoked: He wants to try a single-payer proposal.

Most conservatives have been actively hostile. They make some fair technical points. The law envisions the secretary of Health and Human Services handing out the waivers, while the Heritage Foundation’s Stuart Butler would prefer to see a bipartisan commission in charge. But most take aim at the proposal’s basic goals: that care has to be as universal, as good and as cheap.

Cannon, for instance, frets that there’s no conservative policy that “would cover as many people as a law that forces them to buy coverage under penalty of law.” Butler worries that it “locks the states into guaranteeing a generous and costly level of benefits.”

But as the New Republic’s Jonathan Cohn points out, under the Affordable Care Act, a family of four could shell out $12,500 out of pocket for medical costs. How much stingier should the insurance be?

And Cannon is right that conservatives don’t have solutions to provide coverage as universal as what the Affordable Care Act would. But whose fault is that?

Conservatives once offered solutions competitive with what the Democrats were proposing, but over the past 30 years, they’ve abandoned each and every one of them to stymie Democratic presidents. Confronted with a challenge to provide broader access to better health care at a lower cost, they’re reduced to complaining that those aren’t the right goals for health-care reform. But we’ve yet to see how “less comprehensive insurance for fewer people” would play in Peoria. My hunch is it wouldn’t play very well.

For decades, Republicans have chosen stopping Democratic presidents over reforming the American health-care system. Now that reform has passed, the solution for members of the GOP is to press the rewind button. They’re about to find out that it’s not enough.

On that much, Luntz and I agree: If the public comes to see the GOP as opposed to reform, “the battle is lost” — at least if you believe “the battle” is to beat the Democrats rather than provide quality health insurance to every American.

By: Ezra Klein, Columnist, The Washington Post, March 8, 2011

March 8, 2011 Posted by | Affordable Care Act, Constitution, Health Reform, Individual Mandate | , , , , , , , , , , | Leave a comment

   

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