“Be Very Afraid Of ‘King v. Burwell'”: It’s Whether Or Not The United States Has Essentially Become A Banana Republic
There was a society of men among us, bred up from their youth in the art of proving, by words multiplied for the purpose, that white is black, and black is white, according as they are paid. To this society all the rest of the people are slaves.
–Jonathan Swift, Gulliver’s Travels, 1726
The real question before the Supreme Court in the ballyhooed case of King v. Burwell isn’t merely the continuance of the mandated health insurance subsidies of “Obamacare.” It’s whether or not the United States has essentially become a banana republic — an oligarchy whose legal institutions exist to provide ceremonial cover for backroom political power plays.
Almost regardless of what you think of the Affordable Care Act, legalistic chicanery of the kind on display shouldn’t be rewarded. That King v. Burwell has reached the high court is bad enough. Should the Roberts Court hand down a 5-4 decision based upon a tendentious misreading of the statute, several things will happen: An estimated 8.2 million Americans will lose health insurance coverage, the U.S. health care system will be thrown into economic chaos, and a few thousand citizens will no doubt die.
To a certain kind of person styling himself “conservative,” this would be perfectly all right. In an op-ed titled “End Obamacare, and People Could Die. That’s Okay,” one Michael R. Strain argues that higher death rates are “an acceptable price to pay for certain goals,” including “less government coercion and more individual liberty.”
Acceptable to Strain and his colleagues at the American Enterprise Institute, that is, a plutocrat-funded Washington think tank whose resident “scholars” are handsomely paid to mimic the values of 19th-century Russian aristocrats.
Along with the human casualties, the U.S. Supreme Court’s prestige as a fair arbiter would also be irrevocably damaged. As New York Times legal correspondent Linda Greenhouse argues, “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.”
And that would damage what’s left of American democracy.
During his 2005 confirmation hearings, Chief Justice Roberts likened himself to an umpire. His job would be to call balls and strikes, not to reinvent the rules of baseball. It was a very shrewd formulation, as most Americans prefer a non-partisan judiciary. “It is a very serious threat to the independence and integrity of the courts to politicize them,” Roberts has said repeatedly.
With the signal exception of Citizens United, a 5-4 decision invalidating campaign finance laws and pushing the nation in the direction of plutocracy, some observers do credit the Chief Justice with making an effort to move the Court away from overt partisanship. Almost two-thirds of recent Supreme Court rulings have been unanimous.
However, Roberts’ deciding vote legitimizing Obamacare’s insurance mandate infuriated many Republicans. They see in King v. Burwell an opportunity for the Chief Justice to redeem himself. All he needs to do is persuade a majority of the Justices, presumably including himself, that because the Affordable Care Act speaks of subsidies being available through a health insurance “exchange established by a state,” it means only, exactly, and literally that.
If your state—say, New York—set up and ran its own marketplace, then you’re eligible for Obamacare.
If not, you’re not.
No more health insurance subsidies for residents of Texas, Oklahoma and 32 other states that let the feds set up exchanges for them.
Never mind that the law specifically requires the U.S. Department of Health and Human Services to “establish and operate such exchange[s] within the states.” Never mind that nobody anywhere understood the Affordable Care Act to have such a restrictive meaning when it was being debated, enacted and put into operation. Such an interpretation certainly never came up during the difficult period when the HealthCare.gov website labored to get up to speed.
Never mind too that time-worn Supreme Court precedents direct judges interpreting laws to consider not isolated snippets of language, but “the specific context in which that language is used, and the broader context of the statute as a whole.” (The wording is from a 1997 opinion by Justice Clarence Thomas.)
For that matter, if anybody in Congress on either side thought the law meant what the plaintiff’s lawyers in King v. Burwell claim, why have we been having the political battle of the century about it? Why vote 56 times to repeal a law that only applies in 16 of the 50 states?
It’s an odd form of legalistic fundamentalism the justices must consider, the constitutional equivalent of a guy trying to beat a ticket for driving 95 mph in a school zone because a typo reads “ozone.”
The wonder is that the Court elected to hear the case at all after a three-judge appeals court in Richmond rejected it unanimously.
And the scary question is why?
By: Gene Lyons, The National Memo, March 4, 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
Share This Blog
Unknown Feed- An error has occurred; the feed is probably down. Try again later.
mykeystrokes.com 