“Must Vow To Never, Ever, Betray The Conservative Cause”: GOP Candidates Will Now Have To Promise Supreme Court Litmus Tests
With two dramatic and far-reaching liberal decisions in as many days at the end of last week, the Supreme Court laid Republicans low, dashed their hopes and spat on their dreams, made them beat their breasts and shake their fists at the heavens. And in both cases, it was a conservative justice (or two) who joined with the liberals to do it. So while there will be a lot of discussion among Republicans about where they should go from this point forward on the issues of health care and gay rights, you can be sure that they’re also going to spend a great deal of time talking about how they can make sure this kind of thing never happens again. Conservatives already hated Anthony Kennedy, and now some have decided that John Roberts is a traitor as well. If you’re a Republican presidential candidate, you’d better have a strong argument for why whoever you’ll appoint to the Supreme Court will never, ever, ever betray the conservative cause.
In the first couple of days, the candidates reacted much as you think they might, with varying degrees of displeasure built on time-tested conservative cliches about judicial restraint and judges not legislating from the bench. Which was a little odd, since in one of two decisions (King v. Burwell), what they were hoping for was a little more judicial activism. Nevertheless, they’ve been saying those things for so long that it may be understandable. So when Hugh Hewitt asked Jeb Bush how he would avoid future betrayals like these, he said only, “You focus on people to be Supreme Court justices who have a proven record of judicial restraint.” Rick Perry said much the same, that he would “appoint strict Constitutional conservatives who will apply the law as written.” Marco Rubio reached farther back, arguing that “As we look ahead, it must be a priority of the next president to nominate judges and justices committed to applying the Constitution as written and originally understood.” Scott Walker issued a statement on his Facebook page about “five unelected judges” but passed on an opportunity to rail about them the next day. If you wanted a real denunciation of the Supreme Court that went beyond an objection to the substance of their decisions, you’d have to go to second-tier candidates like Ted Cruz, who proposed recall elections for Supreme Court justices, or Mike Huckabee, who loaded up his rhetorical musket to march at the Supreme Court redcoats. “I will not acquiesce to an imperial court any more than our Founders acquiesced to an imperial British monarch,” he said. “We must resist and reject judicial tyranny, not retreat.”
But guess what? That’s not going to be good enough for Republican voters anymore. Here’s what’s going to happen: At one town hall meeting after another, a Republican primary voter will stand up to the candidate before them and say, “What are you going to do about the Supreme Court?” Then everyone else will lean in to listen.
As well they should. Given the ages of the justices (four are over 76 years old) and the fact that the next president will probably have the chance to appoint a liberal to replace a conservative or vice versa for the first time since Clarence Thomas replaced Thurgood Marshall in 1991, there may be no single issue in the 2016 campaign of greater importance than the Supreme Court. If Hillary Clinton replaces a conservative justice, the court would swing to a liberal majority; if a Republican replaces a liberal justice, there would be a solid conservative majority with Anthony Kennedy no longer holding the swing vote.
Right now, conservatives are feeling like they’ve been betrayed. As conservative writer Matt Lewis noted on Thursday, “conservatives thought they had figured it out. The right created an impressive infrastructure and network to identify and promote conservative lawyers, clerks, and would-be judges,” and it was designed to keep these kinds of defections from happening. And Chief Justice Roberts was supposed to be the model for how it would work: a young, accomplished lawyer who did his apprenticeship in the Reagan Justice Department, where, like his colleague Samuel Alito, he imbibed the foundations of conservative legal thinking.
As it happens, the John Roberts whom Republicans are now denouncing as a traitor for his ruling in King v. Burwell is also the justice who engineered the unshackling of billionaires’ money in politics, the gutting of the Voting Rights Act, and the Court’s first declaration of an individual right to own guns — along with dozens of other extremely important and extremely conservative rulings in recent years. If anything, he’s an ideologue but not a partisan, meaning he sometimes does what’s in conservatives’ long-term interests, even if it isn’t what the Republican Party wants at the moment.
But the old Republican cry of “No more Souters!” may now be replaced by “No more Kennedys and Robertses!” Republican candidates are going to have make it very clear to primary voters that they have a whole list of litmus tests, and any lawyer or lower-court judge who fails to satisfy each and every one won’t be getting nominated to the Supreme Court. Vague words about judicial restraint and respecting the Constitution aren’t going to cut it.
I’ve argued before that litmus tests for Supreme Court appointments aren’t a bad thing — instead of having candidates pretend that they’re only interested in finding wise and humble jurists, and having the Court nominees themselves pretend that they have no opinions on any legal questions, we should just get everything out in the open so we can all know what we’re in for. In the past, Democrats have been more willing to discuss the litmus tests they have (particularly on abortion), while Republicans have insisted that they only want judges who will respect the Founders and interpret law, not make law. Of course, that isn’t really what they want — when the circumstances are right, they’re only too happy to have judges make laws (or overturn them) if it produces the outcome they prefer.
So if nothing else, the Republican candidates will have to be a more honest now. But they can’t be too honest. Tell everyone that you will tolerate only Supreme Court justices who will overturn Roe v. Wade, strike down the Affordable Care Act, restrict workers’ rights, roll back environmental regulations and get even more big money into politics, and you coulan, d run into trouble with general election voters. That makes it a tricky balance to strike, which is pretty much the story of the entire 2016 campaign for Republican candidates: Appealing too strongly to primary voters means potentially alienating the broader electorate, on almost every issue that comes up. As dramatic as the past week was, other issues will eventually push the ACA and gay marriage out of the headlines, at least for a while here and there. But in the short run, the candidates are going to face a lot of pointed questions about whom they plan to put on the Supreme Court.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line Blog, The Washington Post, June 29, 2015
“The GOP’s Obamacare Alternative; Crickets”: Now Railing Against Obamacare Without Having To Come Up With A Replacement
Now that the Supreme Court has saved the Affordable Care Act for a second time, what do Republicans do? We already know they won’t tone down their rhetoric and will continue to call for repeal because that’s what Republican primary voters want to hear. The candidates will package together vague alternative proposals that they will pledge to pass and enact as the first act of their presidency.
But they don’t have even a remote chance of repealing the ACA, even if a Republican is elected president in 2016.
“The ruling is the last gasp,” says Chris Jennings, a health policy expert who worked in both the Clinton and Carter administrations. While the presidential contenders will keep alive the hope for their base that if elected they can sweep away Obamacare, Jennings says the issue will be dead and gone by fall 2016. The voters will have moved on.
Conservatives feel betrayed yet again by Chief Justice John Roberts joining with the liberals on the Court to uphold the constitutionality of the ACA, but they should thank Roberts. He saved the GOP from having to bail out 6½ million people, the majority of them in red states, who would have lost their health insurance if the Court had ruled the other way.
Now Republicans can continue to rail against Obamacare without the responsibility of actually coming up with a law to replace it. “This decision gives them a vast canvas on which to write,” says Jack Pitney, a government professor at Claremont McKenna College in California. “There’s no need for immediate replacement, so rhetoric will fill the vacuum of legislation.”
There will be proposals, enough to satisfy the GOP faithful that the presidential candidates are doing something to end the abomination of Obamacare. But these will not be serious efforts because it is not possible to write health-care legislation that leaves in all the goodies everybody supports, like no discrimination for preexisting conditions, and leaves out what people oppose, like the mandate.
A reading of the majority opinion written by Roberts reveals that he paid close attention to the argument put forth by the health insurance industry in an amicus brief. Without the subsidies, millions could not afford coverage and only those with significant medical expenses would apply, sending the ACA into a “death spiral.”
The Roberts Court handed another lifeline to President Obama, but the decision is also a huge victory for the health industry. Asked how difficult it is for the GOP to step in with their own plan to counter Obamacare, Ceci Connolly, a Health Research Institute Leader and a former Washington Post reporter covering politics and health care, countered with some hard numbers. “The 2.9 trillion dollar health sector is exceedingly complex and changing; it takes an enormous amount of time and work,” she said. “Not only has the ACA expanded coverage, it has pumped billions of dollars in revenue to the health industry, and going back would upset a very large and important market.”
If the subsidies were removed or denied, it would have cost the health industry $36 billion in premium revenue next year alone, Connolly told The Daily Beast. Hospitals would have seen their revenue fall about $9 billion. While still a fraction in a huge market, “that’s real money to the industry,” she says. “The legislative process is cumbersome to say the least, and it would be a steep climb to replace the ACA.”
If a Republican president is elected, and the GOP retains the Senate along with the House, “that’s a new ballgame,” Connolly said. “But by 2017 the law would have been implemented for seven years. It’s very hard to take away benefits and significantly restructure a market as big as the health care market.”
Connolly noted that the executives her research group talks to around the country anticipated the decision to come down the way it did. “They could not imagine the subsidies being taken away.”
The phrase that political scientists use is “past dependency.” Once a major policy is entrenched, it’s very difficult to change in a major way. We’ve seen that with social security and Medicare, programs that President Obama invoked in his remarks in the Rose Garden about the ACA’s rite of passage into “the fabric of America.”
By: Eleanor Clift, The Daily Beast, June 25, 2015
“Conservatives Lost Outright”: John Roberts, Liberal Hero; How The Chief Justice Destroyed The Conservative Case Against ObamaCare
Since ObamaCare passed in 2010, Republicans have been searching desperately for a way to destroy the law through legal trickery (or as they call it, “judicial activism”), since they don’t have the means to kill it through legislation. In 2012, with the Supreme Court decision NFIB v. Sebelius, they got a partial victory, with the court badly wounding the law’s Medicaid expansion but leaving the rest unharmed.
In the case decided on Thursday, King v. Burwell, conservatives sought to cripple the insurance markets in states that had not set up their own health care exchanges. They did this by advancing a spurious reading of the Affordable Care Act (ACA) that would forbid insurance subsidies from flowing through the federal exchange website, thus devastating the private insurance markets in those states.
This time, conservatives lost outright. Chief Justice John Roberts, joined by Justice Anthony Kennedy and the four liberals on the bench, wrote the opinion — and it delivers a stark rebuke to the conservatives who have been fumbling around for an alternative to ObamaCare since 2010. “Repeal and replace” has been their mantra, but they never even got close to uniting around an actual replacement policy. Today, Roberts shows us why: It’s impossible.
King focused on a single phrase in the ACA, “established by the State,” which, taken out of all legal and policy context, could be construed to restrict subsidies to the state exchanges only. Because the Chevron doctrine requires that, in case of ambiguous wording, the implementing agencies get to decide how to interpret a law (in this case the IRS), it was necessary to construct an alternate history of the ACA. In this version, Congress meant to restrict subsidies to the state exchanges, to coerce states into creating one.
Liberals carefully explained that no, that was a completely insane version of ObamaCare’s history. Health care policy reporters, the staffers who drafted the law, and members of Congress who voted for it all swore up and down that this had never even been seriously discussed, let alone that it was their intention. State-level politicians, who are responsible for deciding whether to create their own exchanges, reported they had never heard of such a threat. Why would Congress create a mechanism to force states to do something, and then never mention it?
Roberts’ opinion delivers total victory to the liberal case. First, he examines the statute and finds that, in fact, it is not ambiguous — the government’s interpretation is correct. He writes that, considered in context, the plaintiff’s reading of “established by the State” would make great swathes of the rest of the law totally nonsensical. The ACA clearly states that all exchanges are to provide qualified plans to qualified people, which would be impossible for the federal exchange without subsidies. Moreover, why would the law provide for a creation of a federal exchange at all, if nobody can actually use it?
Second, and more fundamentally, Roberts finds that the plaintiff’s reading of ACA is poles apart from the obvious policy intention of the law. He accurately describes ObamaCare’s three-pronged approach: guaranteed issue and community rating, requiring insurance companies to offer policies to everyone at a reasonable price; an individual mandate, so that healthy people will participate in the risk pool; and subsidies for people who can’t afford the insurance.
All three are necessary for ObamaCare to work, but the plaintiffs’ reading would eliminate two of the three prongs in states without their own exchange. Subsidies would go, and so would the individual mandate, because it doesn’t apply if people are spending more than 8 percent of their income on a policy. Roberts notes that this would likely cause an insurance death spiral in those states, as healthier people flee an increasingly expensive market, turning the ACA into a health insurance doomsday device. Indeed, just such a death spiral happened in several states before ObamaCare passed — which is partly why it included all three prongs. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” he concludes.
That brings me to the “replacement” rhetoric. Roberts’ clear account of ObamaCare’s policy mechanism, and the damage that would be done should any of its main prongs be removed, deals a body blow to the conservative health care wonks who have been trying to cook up a replacement policy for the last five years — in particular, a plan without the unpopular individual mandate. But as Roberts plainly shows, that leads straight to disaster.
It’s an implicit concession that ObamaCare is the most conservative possible policy that could get even close to universal coverage — if five years of Republican policy failure weren’t enough evidence.
By: Ryan Cooper, The Week, June 25, 2015
“The Hard, Cold Politics Of Neo-Confederacy”: Now Fly Under The Flag Of “Constitutional Conservatism” With Tricorner Hat Of The Tea Party
Even as a lot of conservatives advanced dumb revisionist histories whereby no Republican had ever expressed sympathy for the Confederacy and its symbols, RealClearPolitics’ Sean Trende offered a clear-eyed analysis of the politics of the matter in recent decades, and while I don’t agree with all his conclusions, it’s a breath of fresh air.
Long story short: Trende argues that the “flag” controversy became a big deal during a relatively brief period when the older downscale rural white southerners who care about it were up for grabs (at least in non-presidential contests) between the two parties, and is now coming to an end because Democrats have lost them and Republicans can now take them for granted.
Because Democrats no longer see any electoral payoff in talking to guys with Confederate flags in the back of their pickup trucks, they no longer have any incentive to make even weak gestures toward keeping the flag around. Progressives are freed from their need to keep up their awkward dance with rural Southerners for the sake of maintaining some degree of power in the South (a dance that dates back at least to FDR’s reluctance to endorse anti-lynching laws). Polarization has forced them – and freed them – to explore new paths to power.
At the same time, it’s important to realize that most prominent Southern Republican politicians have roots in either the suburban or old establishment Democrat wings of the party. I doubt if Nikki Haley or Bobby Jindal grew up with much affection for the Confederate flag. The same goes for Mitch McConnell – who entered politics in Jefferson County (Louisville), an old Union town whose Republicanism was strong enough that it almost voted for Herbert Hoover in 1932.
The examples Trende offers of this dynamic include one with which I am very familiar: Zell Miller coming out for a “flag” change in 1993 and then losing badly among white rural voters in 1994. Cause and effect are not easy to untangle here, however. Miller was already going to lose a lot of support in rural North Georgia in 1994 because in 1990 he benefited enormously from a “native son” effect–North Georgia had rarely produced governors in a state long dominated politically by South Georgia “black belt” pols–that would not appear a second time. He also had an alternative strategy for a majority, based on his education initiatives, and in fact, he won in 1994 because some of his rural losses were offset by suburban gains. All of this is consistent with Trende’s theory that “polarization” eventually took the “flag” off the table, but real politicians had real risks and decisions to make.
As for Trende’s idea that neither party has had any interest in defending the Confederate heritage once Battle-flag-loving rural whites died off or became part of the GOP “base,” I think he misses the broader resonance of neo-Confederate ideology, which isn’t just about battle flags and whistling Dixie. As I argued at TPMCafe earlier this week, all sorts of notions associated with the Confederacy, from absolute state sovereignty and absolute private property rights to a hostile/paternalistic attitude towards African-Americans, remain active elements of hard-core conservative ideology. That they may now fly under the different, red-white-and-blue flag of “constitutional conservatism”–complete with the tricorner hat of the Tea Party–doesn’t change that.
By: Ed Kilgore, Contributing Writer, Political Animal Blog, The Washington Monthly, June 25, 2015
“Hooray For Obamacare”: The Great Conservative Nightmare Has Come True, And It’s A Beautiful Thing
Was I on the edge of my seat, waiting for the Supreme Court decision on Obamacare subsidies? No — I was pacing the room, too nervous to sit, worried that the court would use one sloppily worded sentence to deprive millions of health insurance, condemn tens of thousands to financial ruin, and send thousands to premature death.
It didn’t. And that means that the big distractions — the teething problems of the website, the objectively ludicrous but nonetheless menacing attempts at legal sabotage — are behind us, and we can focus on the reality of health reform. The Affordable Care Act is now in its second year of full operation; how’s it doing?
The answer is, better than even many supporters realize.
Start with the act’s most basic purpose, to cover the previously uninsured. Opponents of the law insisted that it would actually reduce coverage; in reality, around 15 million Americans have gained insurance.
But isn’t that a very partial success, with millions still uncovered? Well, many of those still uninsured are in that position because their state governments have refused to let the federal government enroll them in Medicaid.
Beyond that, you need to realize that the law was never intended or expected to cover everyone. Undocumented immigrants aren’t eligible, and any system that doesn’t enroll people automatically will see some of the population fall through the cracks. Massachusetts has had guaranteed health coverage for almost a decade, but 5 percent of its nonelderly adult population remains uninsured.
Suppose we use 5 percent uninsured as a benchmark. How much progress have we made toward getting there? In states that have implemented the act in full and expanded Medicaid, data from the Urban Institute show the uninsured falling from more than 16 percent to just 7.5 percent — that is, in year two we’re already around 80 percent of the way there. Most of the way with the A.C.A.!
But how good is that coverage? Cheaper plans under the law do have relatively large deductibles and impose significant out-of-pocket costs. Still, the plans are vastly better than no coverage at all, or the bare-bones plans that the act made illegal. The newly insured have seen a sharp drop in health-related financial distress, and report a high degree of satisfaction with their coverage.
What about costs? In 2013 there were dire warnings about a looming “rate shock”; instead, premiums came in well below expectations. In 2014 the usual suspects declared that huge premium increases were looming for 2015; the actual rise was just 2 percent. There was another flurry of scare stories about rate hikes earlier this year, but as more information comes in it looks as if premium increases for 2016 will be bigger than for this year but still modest by historical standards — which means that premiums remain much lower than expected.
And there has also been a sharp slowdown in the growth of overall health spending, which is probably due in part to the cost-control measures, largely aimed at Medicare, that were also an important part of health reform.
What about economic side effects? One of the many, many Republican votes against Obamacare involved passing something called the Repealing the Job-Killing Health Care Law Act, and opponents have consistently warned that helping Americans afford health care would lead to economic doom. But there’s no job-killing in the data: The U.S. economy has added more than 240,000 jobs a month on average since Obamacare went into effect, its biggest gains since the 1990s.
Finally, what about claims that health reform would cause the budget deficit to explode? In reality, the deficit has continued to decline, and the Congressional Budget Office recently reaffirmed its conclusion that repealing Obamacare would increase, not reduce, the deficit.
Put all these things together, and what you have is a portrait of policy triumph — a law that, despite everything its opponents have done to undermine it, is achieving its goals, costing less than expected, and making the lives of millions of Americans better and more secure.
Now, you might wonder why a law that works so well and does so much good is the object of so much political venom — venom that is, by the way, on full display in Justice Antonin Scalia’s dissenting opinion, with its rants against “interpretive jiggery-pokery.” But what conservatives have always feared about health reform is the possibility that it might succeed, and in so doing remind voters that sometimes government action can improve ordinary Americans’ lives.
That’s why the right went all out to destroy the Clinton health plan in 1993, and tried to do the same to the Affordable Care Act. But Obamacare has survived, it’s here, and it’s working. The great conservative nightmare has come true. And it’s a beautiful thing.
By: Paul Krugman, Op-Ed Columnist, The New York Times, June 25, 2015
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