Judiciary

States Unprepared for Pending Obamacare Ruling

Margot Sanger-Katz comments on the outcome of an unfavorable Supreme Court ruling in King v. Burwell that could upend health insurance markets in at least 34 states, thereby “eliminating the federal subsidies that make coverage affordable for millions of Americans.”

“A decision in the court case is expected in June; a new marketplace would need to be ready for shoppers in October in order to sell health plans for 2016. If those states want to make sure that subsidies keep flowing to their residents, they can build their own marketplaces. But it won’t be easy.”

“The political challenges, for one, are substantial. States would need to endorse an exchange through legislation or executive action, as they have declined to do previously … Then there are the operational challenges.”

“Building an exchange today would cost a typical state $40 million to $60 million and take between a year (if a state expedited its contracting schedule) and 18 months.”

“States waiting until now to act won’t have access to a substantial pot of federal money to help them get off the ground. States that have established exchanges so far sought substantial establishment grants from the federal government. By law, that funding stream expires at the end of the year.”

McConnell Relies on Supreme Court to ‘Take Down’ Obamacare

Talking Points Memo: “Senate Majority Leader-elect Mitch McConnell (R-KY) told reporters on Tuesday that if the Supreme Court were to invalidate Obamacare subsidies on the federal exchange, it would lead to a ‘comprehensive revisitation’ of health care reform in Congress.”

“If the Supreme Court axes federal exchange subsidies (which serve some 7 million Americans in 36 states), McConnell said ‘for sure Congress is back in the business of taking a look at health care in a comprehensive way.'”

Greg Sargent: “McConnell suggests the new GOP-controlled Senate will vote to repeal parts of the law, but acknowledges legislative repeal is unlikely to succeed, before stating that there is now a real possibility that instead, the Supreme Court will ‘take it down,’ giving ‘us’ the opportunity of a ‘mulligan’ and a ‘major do-over of the whole thing.”’

“Asked for comment on McConnell’s latest, law professor Nicholas Bagley told me: ‘McConnell confirms here that the litigation is politics by other means. It sounds like McConnell is treating the Supreme Court as another political institution.’”

Do Local Police Really Need War-Ready Paraphernalia?

New York Times: “President Obama … said Monday that he would tighten standards on the provision of military-style equipment to local police departments and provide funds for police officers to wear cameras.”

“Administration officials said they concluded after a review that the vast majority of transfers of military-style equipment strengthened local policing, even after the police in Ferguson were criticized for heavy-handed use of such gear to quell protests last summer. But the officials said local authorities needed common standards in the types of hardware they requested and better training in how to use it.”

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Emily Badger contends that “the recommendations tinker at the edges of the central concern raised by critics who worry that police have become overly militarized: Why do they even need this kind of stuff — armored vehicles, gun turrets, automatic weapons — in the first place?”

“Groups like the American Civil Liberties Union have called for the Pentagon to stop giving the police such equipment, because it only further heightens tensions with local communities, turning neighborhoods into war zones, casting residents as enemy combatants.”

“The report says nothing about how local police are using all this equipment — for crowd control? to fight drug trafficking? — in part because the federal agencies that give it to them don’t track the answer.”

Obamacare Supporters’ Rhetoric Could Undermine Latest Legal Challenge

National Journal: “The Supreme Court doesn’t care whether you think the latest Obamacare case [(aimed at its insurance subsidies)] is ridiculous.”

“For the second time, there’s a very real chance that the Court could tear the Affordable Care Act apart. And, also for the second time, some liberals are making the mistake of treating that existential threat like it’s a joke.”

“By downplaying the challenge, … referring to the sentence in question as a ‘typo’ or a ‘drafting error,’ Obamacare’s supporters risk playing right into the challengers’ hands, Simon Lazarus, [of the  Constitutional Accountability Center], argues. His fear is that this rhetoric is setting the groundwork for the Court’s conservative justices to say, in effect, that their hands are tied—that they see they error, are powerless to fix it, and so must dismantle the statute.”

“That might give them cover to eviscerate the law while providing some insulation from the perception that such a ruling would be nakedly political.”

Is Obama’s Use of Executive Powers Unprecedented?

Julie Hirschfeld Davis in the New York Times: “President Obama’s action to shield millions of undocumented immigrants from deportation and grant them work permits opens a new front in the decades-long debate over the scope of presidential authority.”

“Although Mr. Obama is not breaking new ground by using executive powers to carve out a quasi-legal status for certain categories of unauthorized immigrants — the Republican Presidents Dwight D. Eisenhower, Ronald Reagan and George H. W. Bush all did so — his decision will affect as many as five million immigrants, far more than the actions of those presidents.”

“Mr. Obama’s action is also a far more extensive reshaping of the nation’s immigration system.”

“Some lawyers critical of Mr. Obama argue that by publicly grouping a large number of undocumented immigrants who are not subject to American law and granting them a special status, the president has gone far beyond the limits of prosecutorial discretion and crossed the line into legislative fiat.”

“Previous presidents who used their executive authority to shield undocumented immigrants confronted little of the fury that Mr. Obama now faces, in part because their actions affected fewer people and the issue was not as polarizing at the time.

In addition: “Mr. Obama may be paving the way for future Republican presidents to act similarly to contravene laws that Democrats cherish.”

13 Million Americans Could Lose Insurance Subsidies

Wall Street Journal: “The Supreme Court is expected to rule next year on King v. Burwell, the lawsuit in which the federal government’s authority to provide financial assistance to people who buy insurance in federally operated insurance exchanges is being challenged under a strict reading of the Affordable Care Act.”

“In this case, whatever the merits of the legal arguments, the consequences are significant. The Kaiser Family Foundation has done calculations based on Congressional Budget Office projections for 2016 showing how many people would get financial assistance when the ACA is fully implemented. As the chart above shows, a decision for the plaintiffs would deny financial assistance for insurance premiums to approximately 13 million Americans in 2016. More than half are in a few big anti-ACA states that chose not to run their own exchanges: Florida, Texas, North Carolina, Georgia, and Pennsylvania.”

The Supreme Court: Politicians in Black Robes?

With the Supreme Court’s decision to consider the Affordable Care Act again, Linda Greenhouse asks: Is it a court? Or a collection of politicians in robes?

“There is … a politically manufactured argument over how to interpret several sections of the Affordable Care Act that admittedly fit awkwardly together in defining how the tax credits are supposed to work for people who buy their health insurance on the exchanges set up under the law.”

“Further, the case the court agreed to decide, King v. Burwell, doesn’t fit the normal criterion for Supreme Court review. There is no conflict among the federal appellate circuits … So no, this isn’t Bush v. Gore. This is a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle, before it fully took effect.”

“There is simply no way to describe what the court did last Friday as a neutral act.”

“In decades of court-watching, I have struggled — sometimes it has seemed against all odds — to maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes. This past week, I’ve found myself struggling against the impulse to say two words: I surrender.”

Washington’s Dirty Little Secret

Neil Irwin contends that MIT professor Jonathan Gruber’s inflammatory comments about the way Obamacare was crafted reveals “the dirty little secret: Mr. Gruber was exposing something sordid yet completely commonplace about how Congress makes policy of all types: Legislators frequently game policy to fit the sometimes arbitrary conventions by which the Congressional Budget Office evaluates laws and the public debates them.”

“This kind of gamesmanship is very much a bipartisan affair. President George W. Bush’s expansion of Medicare in 2003 was carefully designed so that its costs were backloaded, rising sharply just after its 10-year mark.”

“To economists, it doesn’t matter whether our hypothetical iPhones are bought directly by the government or ‘bought’ through tax cuts. It doesn’t matter whether Obamacare’s subsidies happen through a tax credit or a check in the mail. It doesn’t matter whether the costs of Bush’s Medicare expansion were projected over a 10-year time horizon or 15.”

Congress “structures the laws in ways that might not be very efficient but sound good on the stump. Mr. Gruber was, in an infelicitous way, expressing frustration with that state of affairs.”

 

Solutions to a Supreme Court Obamacare Disaster

Jason Millman considers the options should the Supreme Court rules against insurance subsidies in states that have refused to run their own marketplaces.

“So what would it take, at this point, for a state to set up their own marketplace? There is a way, and it isn’t probably all that expensive to do, according to Kevin Lucia and Justin Giovannelli, insurance experts at Georgetown University’s Health Policy Institute.”

“According to the Georgetown researchers, the state-run exchanges have to handle certain functions like overseeing health plans and consumer outreach, but they could still rely on HealthCare.gov for enrollment — which means states wouldn’t have to bear the major cost of setting up that technical infrastructure. That’s the approach taken by states like Oregon, Nevada and New Mexico in the upcoming enrollment period.”

 

Governors could use executive orders to establish state-run marketplaces “but that depends on what powers are available to the governors in each of those states.”

“Of course, Congress could also choose to pass a law clarifying that residents of any state are eligible for insurance subsidies. But that seems like a leap right now.”

Latest Obamacare Attack Perverts the Law to Serve Political Masters

Paul Krugman marvels that, with the Supreme Court’s decision to hear Burwell v. King, “it now appears possible that the Supreme Court may be willing to deprive millions of Americans of health care on the basis of an equally obvious typo. ”

“Everything else in the act makes it clear that this was not the drafters’ intention, and in any case you can ask them directly, and they’ll tell you that this was nothing but sloppy language.”

“Now, states could avoid this death spiral by establishing exchanges — which might involve nothing more than setting up links to the federal exchange. But how did we get to this point?”

“Once upon a time, this lawsuit would have been literally laughed out of court. Instead, however, it has actually been upheld in some lower courts, on straight party-line votes — and the willingness of the Supremes to hear it is a bad omen.”

“So let’s be clear about what’s happening here. Judges who support this cruel absurdity aren’t stupid; they know what they’re doing. What they are, instead, is corrupt, willing to pervert the law to serve political masters. And what we’ll find out in the months ahead is how deep the corruption goes.”

 

A Death Panel for Obamacare?

Dana Milbank: “So it turns out there is an Obamacare death panel after all. It has nine members and it operates out of a marble building directly across the street from the Capitol.”

“When the Supreme Court on Friday announced that it would take up another challenge to the Affordable Care Act in March, it delivered the threat of two mortal blows to the signature achievement of the Obama presidency.”

“First, it raised the possibility that the justices, who narrowly spared the law in 2012, will in June come out with a new ruling that would dismantle the law on different grounds. But even if the justices make no such ruling, the very act of taking up the challenge to the law will itself undermine the law. The justices announced their decision just a week before the open-enrollment period for 2015 begins — and the looming possibility that the high court will strike down the law will probably deter those who are considering signing up for its coverage.”

Brian Beutler takes a more positive view: “I’d like to plant a flag in an unlikely, but completely plausible outcome, wherein Chief Justice John Roberts sides with the challengers, but the law survives unscathed nonetheless.”

King v. Burwell, isn’t a constitutional case. It’s a straightforward, (and deeply ridiculous) statutory interpretation case. But Roberts could easily combine the flexibility he showed in the mandate ruling with the logic of the Medicaid ruling, and save the law one more time. In fact, in a world of pure intellectual consistency, there’s no way for Roberts to avoid this conclusion.”

“The beauty of this scenario is that in addition to being a logically and intellectually consistent conclusion for Roberts to reach, it would also raise an elegant middle finger to all of the people on the right who called his integrity into question after he saved the ACA. I wouldn’t bet on this outcome. But let’s hope he doesn’t read this article anyhow.”

States Implore Upholding of Obamacare Tax Credit

Wall Street Journal: “Eleven states that could be affected if the Supreme Court upholds the latest challenge [(King v. Burwell)] to the Affordable Care Act told a court earlier this week they had assumed residents could still receive the law’s tax credits even if they didn’t build their own exchanges.”

“The states—Arkansas, Delaware, Illinois, Iowa, Maine, Mississippi, New Hampshire, New Mexico, North Carolina, Pennsylvania and Virginia—on Monday filed a court brief in a separate appeal on the subsidies pending in the U.S. Court of Appeals for the District of Columbia Circuit.”

“The states added that if the court were to agree that the tax credits can only go out in the states running their own exchanges, ‘it would deprive millions of low- and moderate-income Americans of billions of dollars in federal premium assistance needed to buy health insurance, and it would disrupt state insurance markets throughout the United States.’”

“The brief underscores the possibility the states could take action to guarantee their residents’ access to the tax credits if necessary. A number of states have been weighing ways to do that if the courts side with the challengers.”

Could the Supreme Court Destroy Obamacare?

Sam Baker of the National Journal fears that the Supreme Court, by agreeing to hear oral arguments in King v. Burwell, could destroy Obamacare.

“If the challenge succeeds, the consequences for Obamacare would be dramatic: Costs would skyrocket for millions of consumers, likely causing many of them to drop their coverage.”

“Just the fact that the high court decided to take the case—and the timing of that decision—is a bad sign for the administration. The Justice Department had asked the Court to hold off on King while a similar case works its way through the appeals process. If the Court had gone along with that request, the administration’s hand almost certainly would have been stronger once the issue finally reached the Supreme Court.”

“‘The Court’s decision to grant King substantially increases the odds that the government will lose this case,’ wrote Nicholas Bagley, a law professor at the University of Michigan.”

Margot Sanger-Katz: “Whatever Congress’s original intention, that’s the sort of legislative issue that Congress could fix, not a constitutional problem with the structure of the law that would mean its permanent annihilation.”

“Still, it’s worth remembering all of the parts of the health law that are not under attack by this case … An anti-Obamacare decision in the King case wouldn’t take the health law off the books. It would just make federal spending on health care more uneven than it already is.”

Don’t Worry (Too Much) About an Obamacare ‘Death Spiral’

Josh Barro agrees that if the government loses in King v. Burwell, it “would be a bad outcome. But it would not necessarily be an unsustainable one. I know, because this situation was sustained in New York for over two decades before Obamacare came into being.”

“Two cornerstones of the Affordable Care Act are policies called community rating and guaranteed issue … New York started guaranteed issue and community rating in the early 1990s and went through two decades of individual market dysfunction.”

“King could just create a bunch of new New Yorks, where the individual insurance market doesn’t work, and nobody does anything to fix it.”

“The dysfunction would be especially sustainable since death spirals under King probably wouldn’t be quite as severe as in New York. That’s because the A.C.A. uses a modified version of community rating in which prices can vary based on age, and because the limited period for open enrollment still provides a disincentive to forgo insurance coverage if you are healthy. So, not as many healthy people would flee the market as they did in New York.”

“Still, premiums would rise, as would the percentage of the population without insurance, and Democrats would have a simple prescription: Introduce a state-based insurance exchange, and the market will function again because the subsidies will flow again.”

“As with the Medicaid expansion, some Republican officials would choose to cooperate with the health care law.”