“Congress Might Step In To Fix The Problem”: How Conservative Supreme Court Justices Harmed Their Own Anti-Obamacare Cause
Wednesday’s Supreme Court oral arguments made it evident that at least some conservative justices are worried about the disruption they’ll create if they rule for the challengers in King v. Burwell and void Affordable Care Act subsidies in 34 states.
The justices and lawyers themselves didn’t dwell on humanitarian costs, but those most hostile to the law repeatedly sought to downplay the consequences of an adverse ruling.
The plaintiffs’ lawyer, Michael Carvin, argued against all logic to incredulous liberal justices that eliminating subsidies wouldn’t leave states saddled with a punishing regulatory regime. Antonin Scalia got laughed out of court (sort of) for claiming Congress might step in to fix the problem. Samuel Alito even intimated that states might step in and establish their own exchanges. The Court could even lend them several months time to do so.
“It’s not too late for a state to establish an exchange if we were to adopt Petitioners’ interpretation of the statute,” Alito said. “So going forward, there would be no harm.”
If his suggestion was designed to appeal to skeptical conservatives, like Chief Justice John Roberts, and Anthony Kennedy, he may have harmed his own cause.
Alito’s comments evoke the image of many or most of the states that opted in to federally facilitated exchanges scrambling to reverse their decisions—to keep subsidies flowing and preserve the viability of their individual insurance markets.
That would stem the disruption. But it would also underscore the anti-federalist concerns Kennedy raised during oral arguments in dramatic fashion. What’s better evidence of coercion than sending a bunch of states into a blind panic to do something they weren’t originally inclined to do?
Supporters of the challenge might argue that the source of coercion in that case would be the disappearance of unauthorized subsidies, rather than the underlying scheme in the law. Essentially that this would all be the Obama administration’s fault. But Kennedy was explicit in his admonitions that the coercion problems with the challengers interpretation of ACA run deeper than money transferred by the federal government.
“The states are being told either create your own exchange, or we’ll send your insurance market into a death spiral,” Kennedy said. “We’ll have people pay mandated taxes which will not get any credit on on the subsidies. The cost of insurance will be sky high.”
To dull the implications of Kennedy’s concerns, conservatives enlisted Oklahoma’s Attorney General, Scott Pruitt, who banged out an op-ed arguing that his own state’s experience contradicts the premise that the ACA-as-written is unconstitutionally intrusive.
“Oklahoma knew the consequences of its decision but was not coerced into cooperating with implementation of the Affordable Care Act,” Pruitt wrote.
The argument lacks credibility coming from someone who adopted his position, on the advice of conservative activists, precisely because “in states that have not established their own exchanges, the structure of the ACA will crumble.” Seeking Pruitt’s guidance on the ACA’s impositions on states is a bit like taking flight lessons from a kamikaze pilot.
But Pruitt’s point also doesn’t allay Kennedy’s substantive concerns. His interpretation of the ACA arose not from its plain text, but, again, from the input of meddling activists trying to destroy Obamacare. It doesn’t follow from the fact that Pruitt is keyed in to conservative movement strategy that the ACA provides states clear notice that its subsidies come with major strings attached. Moreover, Kennedy’s problem isn’t just with states responding to the threat, but with the threat itself. “If petitioners’ argument is correct,” Kennedy said, “this is just not a rational choice for the states to make.” In other words, even if several states continue to resist ACA implementation after an adverse ruling, there’s still a problem here, because the federal government shouldn’t be allowed to confront states with such onerous choices in the first place.
Assuming Kennedy meant what he said about coercion, he has several options, most of which augur well for the ACA. He could allow the challengers’ anti-federalist construction of the law to guide him to a better available interpretation (i.e. the government’s). He could determine that the challengers’ construction should be avoided in favor of one that isn’t unconstitutional. He could essentially rewrite it, as the Court rewrote the ACA’s Medicaid expansion, to sever the offending phrase. Or, less auspiciously, he could find for the challengers, and leave the subsidy condition on the books, anticipating that a constitutional challenge will arise as a result.
But the fact that Alito and Scalia assumed a ruling for the challengers would send political actors scrambling for a fix doesn’t advance their ends with anyone concerned about coercion. It actually just proves the point.
By: Brian Beutler, The New Republic, March 6, 2015
“The GOP Gang Of Supremes Go After Obamacare”: This Lawsuit Was A Fraud From The Get-Go
Look out — the Supreme Court’s black-robed gang of far-right ideologues is rampaging again! The five-man clan is firing potshots at Obamacare — and their political recklessness endangers justice, the Court’s own integrity, and the health of millions of innocent bystanders.
In an attempt to override the law, these so-called “justices” have jumped on a wagonload of legalistic BS named King v. Burwell. But that case is a very rickety legal vehicle. It sprang from a frivolous lawsuit concocted in 2010 by a right-wing front group funded by such self-serving oligarchs as the Koch brothers, Big Oil, Big Tobacco and Big Pharma. The chairman of the front group was neither delicate nor discreet in describing the purpose of the lawsuit as a raw political assault on Obamacare: “This bastard has to be killed as a matter of political hygiene,” he howled at the time. “I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart … I don’t care who does it, whether it’s some court someplace or the United States Congress.”
So much for the intellectual depth of the King case, which was fabricated on a twisted interpretation of only four words in the 906-page health care law. The plaintiffs claim that the law prohibits insurance subsidies to the millions of low- and middle-income Americans living in the 36 states that did not set up a state exchange — thus making health care unaffordable to millions of hard-working Americans and small businesses who are purchasing insurance on the federal exchange—essentially nullifying the heart of Obamacare.
Both the district and appeals courts rejected that perverse ideological tommyrot, and even the nation’s largest health care provider called the claim “absurd.” Nonetheless, the gang of Supremes grabbed the case as a chance to wreak their own brand of ideological havoc on a law they personally dislike.
By taking over this case, these Republican judges have openly become partisans, thrusting the Supreme Court itself into the forefront of the GOP’s war against Obamacare — and against Obama himself.
While we know that an anti-government group funded by plutocratic corporate powers is behind the lawsuit intended to terminate Obamacare — who are the four people who are out front as the actual plaintiffs in the case?
The Competitive Enterprise Institute is the corporate front, but it had no standing to sue, so it had to find some actual people who would claim they’ve been harmed by the health care law. Thus, David King, a 64-year-old Vietnam vet, was recruited to be the lead plaintiff in King v. Burwell, which is now in the Supreme Court’s hands. He and three co-plaintiffs were chosen to put sympathetic human faces on what essentially is a right-wing political ploy.
But who are they? An investigative article in Mother Jones magazine by Stephanie Mencimer reveals that King’s modest income as a self-employed limo driver exempts him from Obamacare’s insurance mandate — so he’s been done no harm by the law and, therefore, has no standing to sue. Moreover, as a veteran, he’s entitled to VA care and, in a few months, to Medicare, making him double-covered by public health programs. Mr. King’s main reason for being on CEI’s lawsuit appears to be that he loathes Obama, referring to him as “a joke” and “the idiot in the White House.”
None of the three other recruits seem to have been harmed by Obamacare, either. “I don’t know how I got on this case,” says Brenda Levy, adding that, “I don’t like the idea of throwing people off their health insurance.” Then there’s Rose Luck, whose low income also exempts her from the law’s mandates. But she, too, fiercely loathes Obama. She posted on her Facebook page that she “wouldn’t admit he was our president,” calling him “The anti-Christ” who only won the Oval Office because “he got his Muslim people to vote for him.”
This lawsuit was a fraud from the get-go — and if five Supremes use it to take away the health coverage of some 10 million Americans, they’ll also be exposed as rank political hatchetmen masquerading as “justices.”
By: Jim Hightower, The National Memo, March 4, 2015
“Interpreting A Statute Requires Reading All Of It”: Challenge To Affordable Care Act Hinges On 4 Words In Isolation, Not The Full Law
When the Supreme Court hears oral arguments in King vs. Burwell, all eyes will be on Chief Justice John G. Roberts Jr., to try to figure out which way he’s leaning. After all, this case is the latest challenge to the Affordable Care Act, and the last time the law was before the high court, Roberts was the deciding vote in favor of the government. There’s one very good reason to think the chief justice will rule for the government again: He’s too good a lawyer to do otherwise.
King is all about the meaning of the Affordable Care Act, specifically, whether the law makes tax credits to low- and middle-income Americans available to all individuals who qualify based on income, or only to those who live in states with state-run healthcare exchanges. The plaintiffs argue that tax credits aren’t available to individuals who purchase their insurance on exchanges run by the federal government. But it’s difficult to imagine a legal mind like Roberts’ agreeing with an argument as weak as the one the plaintiffs have offered.
Interpreting a statute requires reading it carefully — all of it. You can’t just look at a few words in isolation. As Justice Anthony M. Kennedy wrote in 2006 (in an opinion that Roberts joined), “Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.”
When you look at the entire law, it’s clear that tax credits should be available on all exchanges, both state and federal. The statute defines who qualifies for a tax credit based on income level (not state of residence), and it also makes clear that federal exchanges are the functional equivalent of state-run exchanges by requiring that states set up exchanges, but allowing the federal government to set up “such exchange(s)” in their stead if they elect not to.
To now argue otherwise, the plaintiffs in this case rely on just four words in the law — “established by the State” — that appear in the formula for calculating the amount of the credit (not in the provision defining which individuals qualify for it). But a careful reading of the statute shows that those four words are there to make clear that the relevant exchange for calculating the amount of the credit is the exchange in the state where the individual purchased his or her insurance (state-run or not).
This problem is fatal to the plaintiffs’ argument, as the chief justice should surely recognize. But there are many other problems with their argument, as has become increasingly clear in the run-up to oral argument. Most significant, the plaintiffs have long maintained that Congress intentionally limited tax credits to encourage states to set up their own exchanges. The members of Congress who led the passage of the law have always said otherwise. As a number of the chairs of the committees that crafted the Affordable Care Act wrote last year, “None of us contemplated that the bill as enacted could be misconstrued to limit financial help only to people in states opting to directly run health insurance marketplaces.”
Indeed, the evidence against the plaintiffs’ case on this point is so strong that in their most recent filing with the Supreme Court, they argue that it is “irrelevant whether Congress subjectively intended” to limit the tax credits. The plaintiffs may hope that these holes in their legal argument don’t matter. But these points should matter to the chief justice and the rest of the court.
There’s already been a great deal of speculation about why Roberts might rule for the government. Some pundits and court watchers have pointed out that a ruling for the plaintiffs in this patently partisan attempt to gut the Affordable Care Act might impair the legitimacy of the court. Others in the legal and business communities have noted that a ruling against the government would result in significant chaos and disruption to insurance markets in the affected states because the tax credits are necessary for the law’s other market reforms to work properly.
These points are both right. But if the chief justice votes for the government, as he should, the reason may be far simpler: He’s too good a lawyer to do otherwise.
By: Brianne J. Gorod, Appellate Counsel at the Constitutional Accountability Center, was an author of the brief filed on behalf of some members of Congress and state legislators in King vs. Burwell. She wrote this for the Los Angeles Times; The National Memo, March 2, 2015
“Obamacare By Any Other Name”: An Unnecessarily Complicated Way To Undo Harm Caused By A Crisis Of Their Own Creation
This is kind of brilliant; it might be the perfect illustration of the state of the modern GOP. The Examiner’s Byron York is reporting that a group of GOP senators is working on a plan to undo the damage that would be done if the Supreme Court rules against the government in King v. Burwell.
For those not familiar with it, the case, which the court will hear next week, turns on the question of whether people who buy health insurance in federal exchanges (in the 34 states that didn’t set up these Obamacare-mandated marketplaces) are eligible for tax subsidies to help pay for health care.
If the court does knock out the subsidies, it could cause havoc in insurance markets – a recent RAND Corporation study estimated that 8 million people could lose their insurance, while the American Academy of Actuaries warned Secretary of Health and Human Services Sylvia Burwell this week that companies could be facing insolvency if the King ruling drives the markets into death spiral territory.
So on the one hand conservatives would come close to achieving their goal of wrecking Obamacare at any cost; on the other hand, they’re starting to realize there would actually be, you know, a cost, both in human and political terms. “We’re worried about ads saying cancer patients are being thrown out of treatment, and Obama will be saying all Congress has to do is fix a typo,” one senior GOP aide told York. (No doubt the actual fact of cancer patients being thrown out of treatment would also be upsetting to this aid.)
So Republicans are looking for a way to restore the government expenditures they have worked so hard to eliminate. Well, not the actual expenditures; a totally different set that would perform the same function but – this is important – would be called something else that didn’t have the word “Obamacare” in it. “GOP lawmakers have decided to keep the money flowing,” York wrote. “Maybe the payments won’t be called subsidies, but they will be subsidies. The essence of Obamacare – government subsidizing the purchase of health insurance premiums – will remain intact.”
Of course, the senior GOP aide’s hypothetical Obama would be correct: All Congress would have to do to fix a harmful King decision would be to pass a law saying that people in the federal exchanges are in fact eligible for the subsidies. But the modern GOP isn’t big on taking the most direct route to the conclusion at which they’ll inevitably arrive. (See, for example, the current ritualistic huffing and puffing from House Republicans – yes, we’ve seen this show before – and various fallback positions en route to the inevitable full, clean funding of the Department of Homeland Security.)
This is the apotheosis of the 21st century GOP Congress: It is seeking an unnecessarily complicated way to undo or prevent harm caused by a crisis of its own creation. This is the fiscal cliff, again; this is the shutdown fight, again; this is the debt ceiling fight(s) all over again.
And it’s also important to keep in mind that this effort to undo the GOP’s avowed goal is angels-on-the-head-of-a-pin stuff. Five years on, the GOP has yet to produce a plan encompassing the latter half of their “repeal-and-replace” mantra; merely ensuring insurance for 8 million people is presumably an easier lift, but no one should hold their breath waiting for a unified Republican plan. This is especially true given that the party’s activist base will label any such effort as an embrace of Obamacare.
Probably nothing will see the light of day. But if the GOP can produce a bill to fix its problem, you can bet that first we’ll repeat the same kabuki where GOP hardliners dream up the demands they’ll make in exchange for ending ongoing harm to the economy. To borrow a maxim from “Battlestar Galactica,” all of this has happened before, and will happen again.
By: Robert Schlesinger, U. S. News and World Report, February 27, 2015
“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
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