“In A Terrible Predicament”: A Victory For Obamacare’s Challengers Will Be A Disaster For Republican Candidates
Once the conservative legal strategy that gave rise to King v. Burwell got off the ground, Republicans in Congress probably had no choice but to become cheerleaders for, or active participants in, the ensuing litigation.
The imminence of the decision in the Obamacare challenge, expected from the Supreme Court sometime this month, is exposing the terrible predicament the entire strategy created for the party.
The problems Republicans will encounter if they win King—eliminating billions of dollars worth of insurance subsidies—are fairly clear and have been detailed at length. But it is also quite conceivable that the whole effort will boomerang on the GOP even if the government wins in King, and the federal subsidies survive for those states using federally facilitated exchanges. A number of persuasive legal arguments point to a victory for the government. But one of the most likely paths begins with the Court concluding that the Affordable Care Act statute is ambiguous—that both parties’ readings of the law are plausible—and that deference should go to the government.
As Chief Justice John Roberts suggested with his one and only question at oral arguments, this would leave the door ajar for a future presidential administration to reinterpret the statute, and discontinue the subsidies.
It’s difficult to fathom that any Republican president would turn off the subsidies quite as abruptly as the challengers want the Court to do. But if the government wins in this way—on what’s known as the second step of the Chevron deference standard—it will create a new conservative litmus test for Republican presidential candidates. If elected, will you shut down the subsidies? I suspect most of the candidates will yield to pressure from the right and promise to do precisely that. Most immediately, this promise becomes a general election liability for the Republican primary winner. If that person becomes president, it will turn into an administrative and political nightmare, forcing states and the U.S. Congress to grapple with a completely elective policy fiasco.
King, as Josh Marshall noted recently, “is a wholly-owned subsidiary of the Republican Party.”
That the case was conceived by conservatives and endorsed by Republicans has created an extensive paper trail tying the GOP to the consequences of a decision for the challengers. It has also forced Republicans to playact as if they can and will fix the problems that flow from an adverse King ruling. Initially the idea was to foam the runway for conservative justices eager to void the subsidies; it has become an accession to the reality that the public will hold Republicans to account for the ensuing chaos.
Among the pitfalls of the extended charade is that Republican presidential candidates will reject and condemn proposals to clean up a King mess if they even resemble constructive solutions.
“Things can’t be turned on a dime,” Senate Majority Whip John Cornyn told Politico. “People can run for president, but we’ve actually got to solve a problem.” Cornyn may have been thinking of his fellow Texan Ted Cruz, who wants to use King as a pretext to repeal all of Obamacare. But his discomfort with Cruz’ absolutism carries a whiff of inconsistency: Cornyn signed on to Republican briefs, first urging the justices to hear King and then asking them to void the subsidies. In January he eagerly anticipated that the Court would “render a body blow to Obamacare from which I don’t think it will ever recover.”
The promise of the King challenge has apparently faded since then. Republicans in Congress are quite likely incapable of solving the problem Cornyn was talking about in a way that pleases conservatives, and will be little better equipped if a Republican president discontinues the subsidies on his own. Six months ago, Republicans claimed excitedly that the path to repealing Obamacare outright ran through a victory in King. Now it seems that the best political outcome for Republicans would be to lose the case as conclusively and embarrassingly as possible.
By: Brian Beutler, Senior Editor, The New Republic, June 17, 2015
“Watch What You Pray For, You May Get It”: Republicans Have Boxed Themselves In A Corner On Obamacare
There’s an adage that perfectly captures the Republicans’ conundrum on Obamacare: Watch what you pray for; you may get it. Having spent the past five years viciously battling the Affordable Care Act, GOP leaders are worried that the U.S. Supreme Court may grant them a victory.
If the high court rules in favor of conservatives who have challenged the health care law — essentially gutting it — millions of Americans will lose the subsidies that allow them to purchase health insurance.
They’ll no longer be able to afford to see a doctor. They won’t be able to pay for knee replacements or chemotherapy treatments. They won’t have the money for drugs for hypertension and diabetes.
And they’ll be furious — just in time for the 2016 presidential election. Now that so many people have reaped the benefits of access to medical care, they want to keep enjoying them. They will be fighting mad if their health insurance is suddenly taken away.
That’s because the Affordable Care Act is doing exactly what it was designed to do. Consider a report from the highly respected RAND Corp. — a nonpartisan research group — which issued its latest judgment on the Affordable Care Act in May.
Its study found that nearly 17 million people now have health insurance because of Obamacare. In addition, families may keep adult children on their policies until age 26. There are no longer “lifetime caps” that limit the amount of money insurers will spend on the chronically ill. Patients are no longer turned down for health insurance because they are already sick.
“The Affordable Care Act has greatly expanded health insurance coverage, but it has caused little change in the way most previously covered Americans are getting health insurance coverage,” said Katherine Carman, who, according to a RAND press release, was the study’s lead author. In other words, the law didn’t wreak havoc on those who already had health insurance, as its critics had predicted.
It has slowly dawned on some Republican leaders that the law has provided tangible benefits to millions of Americans, and that they are likely to be blamed if those benefits are jerked away. But they have locked themselves into a very small room and lost the key. They can’t seem to find a way out.
President Obama noted the GOP’s intransigence in a speech to the Catholic Health Association a few days ago. “Once you see millions of people having health care, once you see that all the bad things that were predicted didn’t happen, you’d think that it’d be time to move on. It seems so cynical to want to take coverage away from millions of people,” he said.
But leading GOP officials have taught their aging base, many of whom are Medicare recipients, that the passage of Obamacare was tantamount to a communist takeover. Republican politicians have insisted for years that the Affordable Care Act would corrupt the health care system, ruin the economy and pave the way for a dictatorship. Now, they’d have a hard time persuading those voters, especially the Tea Partiers, it was all just extreme partisan rhetoric.
This latest high court challenge, King v. Burwell, is itself a symbol of Republicans’ determination to strip health care away from millions of Americans. (It’s also a sign of the partisanship that has overtaken the nation’s highest court, which should never have accepted the case.) It’s a frivolous suit that turns on the interpretation of four words in the statute — even though it’s perfectly clear what Congress meant.
If the court agrees with the challenger, chaos will ensue. The GOP will have to take responsibility for finding coverage for millions of people, although its fractious caucus is unlikely to agree on a fix.
Given the stakes, there are undoubtedly those among GOP elders who want the U.S. Supreme Court to maintain the status quo, even if they won’t say so publicly. After all, as Obama put it, “This isn’t … just about the Affordable Care Act. … This is now part of the fabric of how we care for one another. This is health care in America.”
Let’s hope at least five justices concur.
By: Cynthia Tucker, Pulitzer Prize Winner for Commentary in 2007; Featured Post, The National Memo, June 13, 2015
“Dispensed With The Niceties”: Hillary Clinton’s Grand Strategy To Beat The GOP: Take Bold Positions Early And Often
For the better part of 20 years now, Bill Clinton’s presidency has been synonymous with a hazy political concept called triangulation. Since his advisers made the term famous, it has been used to describe everything from standard-issue compromise, to the willingness to confront reactionary elements in one’s own party (think Sister Souljah), to the appropriation of another political party’s policy ideas. The latter is as close to a proper definition as there is.
One big concern bedeviling progressives is that Hillary Clinton’s candidacy will mark the return of triangulation—the preemptive ceding of ideological turf, at a time when, thanks to partisan polarization, such concessions amount to outright victories for the Republican Party. But the early days of Hillary Clinton’s candidacy suggest these fears are overblown—that she is engaged in an entirely different kind of political positioning, one that carries the promise of significant progressive victories or at least of clarifying the terms of key policy debates dividing the parties.
The nature of the strategy involves staking out a variety of progressive issue positions that enjoy broad support, but it’s not as straightforward as simply identifying the public sentiment and riding it to victory. The key is to embrace these objectives in ways that makes standard Republican counterspin completely unresponsive, and thus airs out the substantive core of their ideas: Rather than vie for conservative support by inching rightward, Clinton is instead reorienting liberal ideas in ways that make the Republican policy agenda come into greater focus.
Most recently, Clinton has adopted an aggressive position in support of expanded voting rights. “We have a responsibility to say clearly and directly what’s really going on in our country,” she said in her latest campaign speech Thursday, “because what is happening is a sweeping effort to disempower and disenfranchise people of color, poor people, and young people from one end of our country to the other.”
This is standard Democratic boilerplate, but in service of something new. Most Democrats have been engaged for some time now in rearguard actions to protect voters from disenfranchisement efforts, and promote a remedy to the damage the Supreme Court did to the Voting Rights Act. These are important efforts, but easily countered. It isn’t unpopular to argue that voters should have to show ID, for instance, or to rail against phantom voter fraud, and it’s easy to gloss over the complex nature of the Voting Rights Act in ways that obscure the real goal of these policies, which is to systemically reduce turnout among disproportionately Democratic constituencies—the poor, the young, and ethnic minorities.
Clinton’s plan, by contrast, demands clarity from her opponents. She has proposed that every American, except those who opt out, be automatically registered to vote when they turn 18, and that every state offer at least 20 days’ worth of early voting. Republicans can’t easily oppose this—and oppose it they must—without being explicit about the fact that they want to keep the voting rolls as trim as possible.
Most Democrats likewise support President Barack Obama’s administrative efforts to liberalize immigration enforcement, and want to create a citizenship track for unauthorized immigrants. Republicans oppose both aims, but have been able to muddle that fact using vague procedural language. Generally speaking, it’s not the liberalization of immigration law they oppose, but the unilateral nature of Obama’s actions. They oppose amnesty, but keep the door to a nebulous “legal status” ajar. Both positions are malleable enough to allow the Republican presidential nominee to tack dramatically left in the general election, and gloss over the hostility the GOP has shown to immigrants since promising to liberalize after Obama’s reelection.
For over a year, Democrats humored the GOP’s wordplay in order to preserve the possibility of striking a legislative compromise that includes something Republicans could call “legal status.” Now that the immigration reform process has collapsed, Clinton has dispensed with the niceties. In promising to preserve Obama’s immigration policies, she called out “legal status” as a ruse. “When [Republicans] talk about legal status,” she said, ’“that is code for second-class status.” She has taken the standard Democratic position and weaponized it. Republicans can’t pretend there’s no daylight between their views and Democrats’ views, because Clinton has defined the Republican position for them, by contrast.
Because this kind of obscurantism pervades the GOP’s substantive agenda—through tax policy, social insurance reforms, workplace regulation—Clinton should be able to deploy the tactic across a wide array of issues. Seizing the first-mover advantage is one of the undiscussed upsides of Clinton’s dominance in the Democratic primary field. It doesn’t guarantee her victory over a Republican opponent, but it will assure that the debate between the two of them occurs mostly above board.
By: Brian Beutler, Senior Editor, The New Republic, June 6, 2015
“Some GOPers Want To Play Chicken”: Getting An Obamacare Repeal Bill On Obama’s Desk; For What?
There’s an interesting Rachel Bade/Jennifer Haberkorn piece up at Politico about all the trouble congressional Republicans have encountered in trying to use the budget reconciliation process to pass a simple veto-proof “root and branch” repeal of the Affordable Care Act. Seems the Senate parliamentarian is telling them they’d have to limit themselves to items with an immediate budgetary impact in any reconciliation bill. But any “partial” repeal–much less a replacement–legislation would raise policy questions on which Republicans disagree, and might also involve deficit-boosting consequences for which offsets would have to be found. So some GOPers want to play chicken:
Some conservatives and staff in both chambers, like House Freedom Caucus Chairman Jim Jordan (R-Ohio), are urging the chambers to do a straight one- or two-sentence repeal of everything. They argue that the parliamentarian has to look only at the words in front of her during reconciliation and should not be able to force lawmakers to break out the provisions on their own.
One aide working on the matter suggested they may try this and see if it works — but others are doubtful.
I guess I’m unclear as to why this is worth the trouble. Getting legislation repealing Obamacare onto Obama’s desk, long the obsessive goal of congressional Republicans, will not accomplish a thing other than confirming that Obama doesn’t want to kill his signature domestic policy achievement and Republicans do. I think most voters out there for whom opposition to Obamacare is a “bullet vote” have probably already figured out they should vote Republican in 2016. So the whole exercise appears to be one of those “energize the base” things whose value I am always questioning.
I do think that if SCOTUS kills Obamacare subsidies in states using federal exchanges there will be some value in Republicans getting a bogus “fix” onto the president’s desk in order to blame him for the subsequent chaos. In that contingency they could almost certainly structure a bill that would meet the conditions for reconciliation, and could probably tamp down any internal opposition by ensuring dissenters there’s zero chance any of it will become law. But on “root and branch repeal,” they might as well just promise they’ll git er done when President Bush or Walker or Rubio takes office.
By: Ed Kilgore, Contributing Writer, Political Animal Blog, The Washington Monthly, June 1, 2015
“The GOP’s Next Big Cause”: How State Legislative Districts Are Drawn
The next King v. Burwell is on its way. I don’t mean another court case that could undermine the Affordable Care Act. I mean a case that follows this pattern:
First, a conservative advocate comes up with a novel legal theory, one few people had considered before, to accomplish a Republican goal. Though it flies in the face of either logic, history, and common sense (as is the case in King) or settled precedent (as in this case), Republicans everywhere quickly realize its potential and embrace it wholeheartedly, no matter how many silly arguments they might have to make along the way. And in the end, five conservative justices on the Supreme Court might or might not give the GOP a huge and unexpected victory.
The case is called Evenwel v. Abbott, and it’s about how state legislative districts are drawn. Before your eyes glaze over, understand that it could have a profound effect on the balance of power not only in the states but in Congress as well:
Decades after the Supreme Court set “one person, one vote” as the standard states must meet in creating legislative districts that equitably distribute political power, the justices agreed Tuesday to decide exactly which persons should count.
The court, in accepting a Texas case brought by a conservative advocacy group, will consider whether states and localities may continue to use a place’s total population as the basis or must make redistricting decisions based on the number of citizens who are eligible to vote.
A shift from using total population would have an enormous impact in states with large immigrant populations because of the greater numbers of children and noncitizens. It would most likely transfer power from urban areas to more rural districts. The court will schedule the case for the new term that begins in October.
The analogy with King v. Burwell isn’t perfect, because that was a completely new issue, while this question has come before the courts from time to time. But most people who aren’t redistricting law experts have probably never even considered whether you could exclude children and immigrants from counting population in order to determine legislative districts.
But I promise you: before long, every Republican is going to decide that they firmly believe, as the most fundamental expression of their commitment to democracy and the vision of the Founding Fathers, that only eligible voters should count when tallying population to determine district lines.
One thing to watch out for as this plays out is the role of the conservative media. If I’m right, very soon you’re going to see Fox News hosts and radio talkers like Rush Limbaugh doing segments on this case, in effect instructing conservatives on what’s at stake and how they should think about the issue. That consistent drumbeat won’t only affect the conservative leaders and rank-and-file, it could even affect the Supreme Court justices, who will hear the arguments being made in the media in support of these plaintiffs. After a while, a legal theory that sounded absurd will begin to seem at the very least to be mainstream. In short order, there will be universal agreement on the right. And it could have a real impact on political power even if the plaintiffs lose.
That’s because the Supreme Court could rule a few different ways. They could hold that states must use total population. Or they could do what the plaintiffs ask, which is to require states to use only the number of eligible voters. Or they could maintain the status quo, which is that states can choose whatever method they like in determining population. If that’s the route they take (which would be in line with prior cases), it would open the door for a state-by-state Republican effort to change redistricting laws.
As it happens, the defendant in this case is the state of Texas, which wants to keep its current system. Let’s say the Court rules that things should stay as they are. That would allow states to use only eligible voters in counting population; it just happens that no state has done that before now. By the time the ruling comes down, however, Republicans will have woken up to the fact that here is a handy way to increase their power by diluting the representation of areas with large immigrant populations. If you had a state with a lot of immigrants but which was ruled by Republicans — like, just to pull an example at random, Texas — changing the way population is counted will suddenly seem like an urgent priority. Other states with large immigrant populations where Republicans are in charge, like Florida, Arizona, Georgia, and North Carolina, could get on board as well.
While this case only concerns state legislative districts, as law professor Rick Hasen writes, “you can bet that if the challengers are successful in this case, they will argue for the same principle to be applied to the drawing of national congressional districts.”
It’s too early to tell how the Supreme Court might rule, though most legal observers were surprised they decided to hear the case at all. If Democrats are smart, they’ll make the (perfectly true) argument that this is a naked attempt to take representation away from areas where there are lots of Latinos. That might give Republicans pause in trying to pursue this change if the Court allows it.
On the other hand, when faced with a choice between pleasing their base and enhancing their power on the one hand, and avoiding alienating Latinos on the other, Republicans always chosen the first. That could make this just one more way that Republicans manage to entrench themselves at the state level while making it exceedingly difficult for them to win another presidential election in the near future.
By: Paul Waldman, Senior Writer, The American Prospect; Contributor, The Plum Line, The Washington Post, May 27, 2015
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