“Who Are These People”: ‘I Don’t Like The Idea Of Throwing People Off Their Health Insurance’
When it comes to the insanity surrounding the King v. Burwell case, we already have a pretty good sense of most of the relevant angles. We know who supports the ridiculous case and why, what happens if Republican justices go along with this dangerous nonsense, how many families will suffer and where, etc.
We don’t, however, know much about the specific plaintiffs themselves.
Remember, when challenging a federal law, it’s not enough for someone to get a lawyer, go to court, and demand the law be struck down. In the American system, plaintiffs need standing – litigants have to demonstrate that a law harms them in some direct way.
And so, in the painfully absurd King v. Burwell case, anti-healthcare lawyers went out and found four people willing to sue because they’re eligible under the Affordable Care Act for insurance subsidies. They’ve been largely overlooked, but given the possibility that this case will end access to medical care for millions of families, it seems like a good time to ask, “Who are these people who want to destroy the American health care system?”
Stephanie Mencimer reports today on all four of the plaintiffs, and it’s quite a collection of folks. For example, David King of King v. Burwell notoriety, “brought up Benghazi” when asked about the anti-healthcare lawsuit. Rose Luck believes President Obama may be the “anti-Christ” and was elected by “his Muslim people.” But a Virginia woman Brenda Levy stood out as especially significant.
What was more surprising, though, was that she said she didn’t recall exactly how she had been selected as a plaintiff in the case to begin with. “I don’t know how I got on this case. I haven’t done a single thing legally. I’m gonna have to ask them how they found me,” she told me. She thought lawyers involved with the case may have contacted her at some point and she had decided to “help ‘em out.” […]
When I asked her if she realized that her lawsuit could potentially wipe out health coverage for millions, she looked befuddled. “I don’t want things to be more difficult for people,” she said. “I don’t like the idea of throwing people off their health insurance.”
Her case, whether Levy realizes it or not, exists to throw people off their health insurance.
She added that she intends to go to D.C. for the Supreme Court’s oral arguments “It’s an adventure,” Levy said. “Like going to Paris!”
Complicating matters further, three of the four plaintiffs are finding their standing suddenly facing new scrutiny. The Wall Street Journal reported late Friday that King “appears to qualify for veterans’ medical coverage, raising questions about his ability to challenge the law.”
The plaintiffs have persuaded courts to hear their case on the grounds that the subsidies allegedly harm them by subjecting them to the law’s requirement to carry insurance or pay a penalty. Without the subsidies, insurance would be too expensive for them, they contend, thus making them exempt from having to pay the fine for lacking insurance.
But Mr. King could avoid paying that fine or any insurance premiums because, according to him and his attorneys, he served in the Army in Vietnam. That qualifies him for medical coverage with no premiums through the Department of Veterans Affairs, benefits and legal experts say. In an interview at his home here, Mr. King said he had been to a VA medical center and had a VA identification card, which typically serves as proof of VA-care enrollment.
Legal experts say the fact that Mr. King could avoid paying the penalty for lacking insurance by enrolling in VA coverage undermines his legal right to bring the case, known as “standing.” The wife of a second plaintiff has described her husband on social media as being a Vietnam veteran. The government previously questioned the standing of a third plaintiff on the grounds that her income may exempt her from paying the penalty for lacking insurance, but a lower court didn’t address the issue.
Levy, the one who doesn’t want to throw people off their health insurance despite her role as a plaintiff in this case, will qualify for Medicare this June – which would remove her from the ACA coverage system anyway.
These fresh details reinforce the impression that the entire King v. Burwell case seems like a transparent scam, and as the WSJ added, the standing issues “could create skepticism about the strength of the challengers’ case and highlight the difficulty of finding plaintiffs to show the health law’s subsidies harm Americans.”
By: Steve Benen, The Maddow Blog, February 9, 2015
“Judicial Activism”: What It Will Take For SCOTUS To Buy Conservative Arguments On ACA Subsidies
A lot of the points that the New York Times‘ legal correspondent Linda Greenhouse covers today in an overview of the stakes involved in King v. Burwell have been made in various places. But pulled together as they are, you can see exactly how radical an exercise in judicial activism it would take for SCOTUS to agree with the petitioners in this case.
First of all, there’s never been a SCOTUS decision validating anything like the principles of statutory interpretation the anti-ACA camp is demanding:
Statutory interpretation is something the Supreme Court does all the time, week in and week out, term after term. And while the justices have irreconcilable differences over how to interpret the Constitution, they actually all agree on how to interpret statutory text. (They do disagree on such matters as the legitimacy of using legislative history, or on what weight to give a law’s ostensible purpose; I’m referring here to how they actually read a statute’s words.)
Every justice subscribes to the notion that statutory language has to be understood in context. Justice Scalia said it from the bench just last month, during an argument about the proper interpretation of the federal Fair Housing Act. “When we look at a provision of law, we look at the entire provision of law, including later amendments,” Justice Scalia said. “We try to make sense of the law as a whole.”
That militates against the sort of literalist meaning the petitioners are asking for. But worse yet from a conservative point of view, punishing the states for exercising an option ACA clearly provided for–allowing the federal government to create purchasing exchanges for them–would violate supposedly sacred principles of federalism.
A fascinating brief filed in support of the government by an unusual coalition of 23 red-state and blue-state attorneys general (some from states with their own exchanges and others from federal-exchange states) maintains that the challengers’ narrative would “violate basic principles of cooperative federalism by surprising the states with a dramatic hidden consequence of their exchange election.”
This brief, written in the Virginia attorney general’s office, continues: “Every state engaged in extensive deliberations to select the exchange best suited to its needs. None had reason to believe that choosing a federally facilitated exchange would alter so fundamental a feature of the A.C.A. as the availability of tax credits. Nothing in the A.C.A. provided clear notice of that risk, and retroactively imposing such a new condition now would upend the bargain the states thought they had struck.”
There are abundant Supreme Court precedents that require Congress to give states “clear notice” of the consequences of the choices a federal law invites them to make. Justice Samuel A. Alito Jr. invoked that principle in a 2006 case interpreting the Individuals With Disabilities Education Act, a case cited by the 23 attorneys general. The government’s own brief, filed by Solicitor General Donald B. Verrilli Jr., observes that “it would be astonishing if Congress had buried a critically important statewide bar to the subsidies under this landmark legislation” in technical sub-clauses.
Yes, “astonishing” is the right word to describe the implications of a SCOTUS action to blow up the Affordable Care Act. But not necessarily surprising.
By: Ed Kilgore, Contributing Writer, Political Animal, The Washington Monthly, February 6, 2015
“The Obamacare Plaintiffs And Medicare”: Maybe They’d Love Obamacare If The Hated President’s Name Wasn’t On It
Politico‘s Jennifer Haberkorn scored a bit of a scoop by convincing the chief plantiff in the King v. Burwell litigation, David King, to let her into his Fredericksburg, VA living room, apparently because he didn’t want to leave her shivering on his front doorstep. Most of what she tells about him, though, seems to come from his recent social media expressions rather than from anything he said to her in person:
The man who could cripple Obamacare isn’t shy about telling the world that he thinks the president is an “idiot,” posting altered images of the first lady in Middle Eastern clothing and expressing his hatred for the “Democraps” who enacted the health care law.
Greg Sargent, however, finds something more interesting to examine about King and a couple of his co-plaintiffs:
[I]t’s fascinating that King is less than a year away from qualifying for Medicare. As it happens, Politico reports that two of the other four challengers are 64 and 63, also putting them very close to qualifying. Remember, this lawsuit is all about the plaintiff’s objection to being subjected to the individual mandate’s requirement that they get insurance. The plaintiffs are claiming injury because Virginia is on the federal exchange, which, they say, means they should not be getting the subsidies which are necessary under the law to require them to get insurance under the mandate. Yet three of the challengers are very close to having the mandate canceled for them by Medicare. (One, it should be noted, is 56 years old.)
It would be really interesting to know what these challengers think of Medicare, given their role in a lawsuit that could go a long way towards gutting the coverage guarantee for millions of Americans.
Unfortunately, we cannot answer Greg’s question yet, if ever. Maybe these folk share the not uncommon belief of seniors that Medicare is an “earned benefit” (at most half-true) in contrast to the “welfare” nature of Obamacare (again, at most half-true). Maybe they don’t like Medicare as it is but would like to “reform” it–though the most common Republican proposal for “reform” is to convert Medicare from being a defined government-provided benefit to a means-tested system of public subsidies for private insurance purchases like Obamacare. Maybe they’d love Obamacare if the hated president’s name wasn’t on it. It’s hard to say. But whatever their reasons, they’re willing to force millions of people who aren’t on the brink of qualifying for Medicare into a health care wilderness. No wonder they don’t want to give interviews.
By: Ed Kilgore, Contributing Writer, Political Animal, The Washington Monthly, February 6, 2015
“Heading Towards A GOP Train Wreck”: You’re Going To See The Republican Party With All Their Clothes Off
Does anyone else see a train wreck coming for this Republican Congress?
House Ways and Means Chair Paul Ryan (R-WI) will lead along with two other top committee chairs a Republican task force to come up with a plan in case the Supreme Court strikes a blow to Obamacare later this year…
They will be tasked with working up an alternative plan if the Supreme Court invalidates tax credits in the 30-plus states that use HealthCare.gov, as well as a more general Obamacare alternative if the law were to be repealed…
Coming in the opposite direction is this train:
There is internal dissent on whether Republicans ought to come up with an alternative. One congressional GOP health aide, who was granted anonymity to speak candidly, said his party is as determined as ever to fight Obamacare, and will remain so as long as it exhibits failure. He said devising an alternative is fraught with the difficulty of crafting a new benefits structure that doesn’t look like the Affordable Care Act.
“If you want to say the further and further this gets down the road, the harder and harder it gets to repeal, that’s absolutely true,” the aide said. “As far as repeal and replace goes, the problem with replace is that if you really want people to have these new benefits, it looks a hell of a lot like the Affordable Care Act. … To make something like that work, you have to move in the direction of the ACA. You have to have a participating mechanism, you have to have a mechanism to fund it, you have to have a mechanism to fix parts of the market.”
Pushing on the accelerator of both trains is this:
Leaders in the GOP-controlled House and Senate see the court challenge as their best hope for tearing apart a law they have long opposed. If the court strikes down the subsidies, Democrats are expected to clamor for lawmakers to pass a measure correcting the language in the law to revive them. Congressional Republicans say there is no possibility they would allow that.
“No, no, no, no;” said Sen. Dan Coats (R., Indiana).
Rep. McDermott came up with a different analogy.
GOP congressional leaders haven’t coalesced around a specific replacement for the law should the court strike down the subsidies. Democrats say that makes them vulnerable, and plan to paint the GOP as responsible for taking away benefits that millions already receive.
“What you’re going to see is the Republican party with all their clothes off,” said Rep. Jim McDermott (D., Wash.) “They are standing out there naked as a jaybird and they are going to have to stand up and explain, ’Well, now we got rid of it – now what do we do?’”
It would all be humorous if it weren’t so terribly tragic.
By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, January 31, 2015
“The Campaign For Liberty”: The War On Obamacare Has Become A War On Minorities And The Poor
Like many eleventh-hour strategies, the right’s final offensive against the Affordable Care Act has a last-gasp quality to it. Where better-laid plans to defeat the ACA in Congress and via Constitutional challenge were fraught with ideological purpose, the challengers in Halbig v. Burwell are engaged in something much smaller. Their argument is merely that if you read a poorly drafted section of the statute out of context, it appears that the law doesn’t contemplate subsidies in states that availed themselves of the federal government’s backstop, Healthcare.gov. Millions of people would lose their health insurance in service of teaching Congress a lesson about the importance of legislative draftsmanship.
That’s not a very becoming political argument, though, so the Halbig supporters have stapled a grandiose claim to their core challenge. Because many of the people who would lose their insurance would also qualify for an exemption from the law’s insurance coverage mandate, they frame it as a principled campaign for liberty.
But many is not all. It’s probably not even most. As University of Michigan law professor Nicholas Bagley noted on Tuesday, a conservative victory in Halbig would eliminate subsidies for everyone, but the hardship exemption would only apply to a subset. Many, many people—those above about 180 percent of the federal poverty level—would still be required to purchase insurance. It would just become more expensive for them. The exemption—the escape hatch to freedom—would only be available to those whose coverage costs more than eight percent of income: the poor, and near-poor. These are the people whose liberty conservatives claim to be fighting for—the people who were only able to purchase insurance because the subsidies made it affordable. The people who, as Bagley writes, would “be free to decline coverage that, without tax credits, they can’t afford anyhow.”
This kind of post hoc appeal to liberty long predates the Affordable Care Act, but it has become particularly salient in the fight against Obamacare as enrollment has grown and weakened traditional tools of opposition. When the Supreme Court made the Affordable Care Act’s Medicaid expansion optional back in 2012, it vouchsafed an old but typically losing conservative argument that using federal spending as an incentive to force state action can be unconstitutionally coercive—a freedom-crushing blow against states’ rights. But the freedom the Court upheld two years ago looks, in effect, an awful lot like the freedom the challengers in Halbig claim to be fighting for. In both cases there’s something conspicuous about the people to whom these strange conceptions of liberty apply.
As of early April, per this Kaiser Family Foundation map, 19 states remained fully unwilling to consider Medicaid expansion. In the weeks since, Wyoming and Tennessee joined Utah and Indiana among GOP-controlled states working toward expanding Medicaid. So the chips are slowly falling. But they are falling along fairly predictable racial and income lines.
Tennessee was a genuine surprise, in that it isn’t lily white, and has fairly high rates of poverty. But the GOP-controlled states that have expanded Medicaid, or are considering Medicaid expansion, are pretty white relative to GOP-controlled states where expansion is out of the question. Deep Southern states, where poverty is most concentrated and black population rates approach 30 percent, aren’t calling up the Department of Health and Human Services in Washington to negotiate a conservative Medicaid expansion compromise. To the contrary, that’s probably where resistance to the expansion runs strongest.
The story won’t be much different if conservatives get their way and ACA subsidies disappear in Healthcare.gov states. If you haven’t caught on by now, the conspicuous thing about the Medicaid freedmen and those who would be freed from the individual mandate is that they’re disproportionately black and poor. ACA rejectionism isn’t enhancing their liberty at all.
But there’s something conspicuous about the Obamacare opponents posing as tribunes for liberty, too. They’re nearly all affluent white people, who take their own health insurance for granted and probably wouldn’t consider themselves liberated if a court or legislature took aim at it for any reason. And though their rhetoric suggests otherwise, they’re waging the final Obamacare battles against poor people and minorities, not on their behalf.
By: Brian Beutler, The New Republic, September 4, 2014
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