Judiciary

Obamacare Legal Attack is a Marvel of Reverse-Engineered Absurdity

New York Times Editorial Board: “On Wednesday, the Supreme Court will hear oral arguments in one of the most anticipated cases of the term: King v. Burwell, a marvel of reverse-engineered legal absurdity.”

The four words in question “— ‘established by the State’ — appear in a subsection of the law dealing with the calculation of tax credits. The law’s challengers say this means that credits are available only in the 16 states that have set up their own exchanges.”

“The challengers did not innocently happen upon these words; they went all out in search of anything that might be used to gut the law they had failed to kill off once before, on constitutional grounds, in 2012.”

“After the challengers found the four-word ‘glitch,’ as they initially called it, they worked backward to fabricate a story that would make it sound intentional.”

“Congress, they claimed, sought to induce states to establish exchanges by threatening a loss of subsidies if they did not … Of course, if Congress intended to introduce a suicide clause into a major piece of federal legislation, it would have shouted it from the mountaintops and not hidden it in a short phrase deep inside a sub-sub-subsection of the law.”

“So it is no surprise that no one involved in passing or interpreting the law … thought that the subsidies would not be available on federal exchanges.”

When is a Republican Obamacare ‘Victory’ not a Victory?

Washington Examiner: “What happens if Republicans win the Supreme Court case against Obamacare? They might end up like the dog that caught the car.”

“Next Wednesday the court will hear oral arguments in King v. Burwell, the case challenging the payment of Obamacare subsidies through the federal exchanges. If the justices bar the payment of subsidies through those exchanges, it would be both a victory for the health law’s critics and a problem for Republicans running Congress.”

“Which is why a Senate GOP working group has been meeting for months to figure out what to do should the challenge to Obamacare succeed.”

Republicans need “to find a way to continue paying subsidies to the estimated 7.5 million Americans who receive taxpayer-funded help to pay their insurance premiums through the federal Obamacare exchange.”

“The prospect of seeing those people lose their subsidies — even though some have received them for a short period of time, and even though Obamacare has imposed burdensome costs on many other Americans — is just too much for Republican lawmakers to risk.”

“Hill Republicans fear such a scenario would create huge pressure on Republican governors, who originally declined to create Obamacare exchanges in their states, to change course and set up state exchanges. The result could ultimately be an Obamacare that is even more firmly rooted and difficult to repeal than it is now — all because of a Republican ‘victory’ in court.”

Jonathan Chait points out that “Private polling by a conservative group found that ‘huge majorities’ would want Congress to restore subsidies for people who had lost them. ‘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 staffer confesses.”

Indifference About Obamacare Ruling From Many Governors

Politico: “The Supreme Court this June could cut off millions of Americans from affordable Obamacare coverage. The response from the nation’s governors gathering in Washington this week was an assortment of shrugs.”

“For some Republican governors it was a shrug of indifference. They say the onus falls on President Barack Obama and Congress to figure out what to do if the Supreme Court invalidates Affordable Care Act subsidies in their states. And if Obamacare falls apart, well, they say, good riddance.”

“For others — among them potential 2016 contenders Scott Walker of Wisconsin and John Kasich of Ohio — it’s a shrug of uncertainty.”

“Governors are largely on the sidelines of the subsidy fight — but in the center of the 2016 map. Administration allies doing Obamacare outreach worked hard to sign up millions of people in states like Florida, Ohio and Pennsylvania, the classic presidential battlegrounds, and homes to some of the likely contenders.”

“Although the issue primarily affects states with Republican governors — Democrat-led states largely built their own insurance exchanges — a handful of Democratic governors with Republican legislatures are also grappling with how to respond. Some would like to build their own exchanges but need to figure out how to pay for it and how to overcome likely Republican opposition.”

Put Aside the Obamacare Rhetoric and Examine the Facts

E.J. Dionne: “We don’t talk about it much, but by closing the ‘doughnut hole’ in the Medicare drug program, thus providing more help, the law has saved 8.2 million seniors over $11 billion since 2010. That comes to $1,407 per beneficiary. How many elderly Americans want that to go away? This is something else that “repealing Obamacare” would mean.”

“Are you a budget hawk? The slowdown in Medicare cost inflation between 2009 and 2012 saved the government $116.4 billion. Sylvia Mathews Burwell, the secretary of Health and Human Services, is way too careful a wonk to claim that all this was caused by the health-care law, but largely good things have happened — including, by the way, to employment — since it passed. Its critics predicted all sorts of catastrophes. They were wrong.”

“Oh, yes, and between the Medicaid expansion and the children’s health insurance program, 10 million people gained coverage. And that’s with two of the states with the largest number of uninsured, Texas and Florida, staying out of the Medicaid expansion.”

“I am sorry to burden you with all these numbers, but the arguments you usually hear about the law are remarkably fact-free. As Burwell says, they typically focus on a single word — that would be ‘Obamacare’ — not what the law does.”

“But it’s lots more fun for opponents of Obamacare to scream ‘socialism’ and make scary and groundless predictions.”

Ruling Against Obamacare Would Cause ‘Massive Damage’

New York Times: “The Obama administration told Congress on Tuesday that it had no plans to help low- and moderate-income people if the Supreme Court ruled against the administration and cut off health insurance subsidies for millions of Americans.”

“Sylvia Mathews Burwell, the secretary of health and human services, said a court decision against the administration would do ‘massive damage’ that could not be undone by executive action.”

“The implicit message is that the White House has no contingency plans, so if the court strikes down subsidies, the justices will be responsible for causing hardship to lower-income people and chaos in insurance markets around the country.”

Burwell: “Millions of people would lose their health insurance subsidies and therefore would no longer be able to afford health insurance … Second, without tax subsidies, healthy individuals would be far less likely to purchase health insurance, leaving a disproportionate number of sick individuals in the individual insurance market, which would raise the costs for everyone else.”

Obamacare’s Positive Effect on the Uninsured Rate Nationwide

Greg Sargent in the Washington Post: “Gallup data sent my way shows that the ACA is also lowering the uninsured rate in states that have not set up their own exchanges … This strongly suggests the federal exchange is probably working in those states to lower the uninsured rate.”

“Gallup’s topline finding, to be sure, is that the uninsured rate is dropping more sharply in states that are fully participating in Obamacare by expanding Medicaid and setting up an exchange.”

“I asked Gallup to calculate the drop in the uninsured rate in the 34 states that are on the federal marketplace or are state/federal partnership states, all of which would lose subsidies and see major disruptions if the Court rules against the ACA.”

“Among adults in all those states, Gallup says, the uninsured rate has fallen by 2.8 percentage points.”

“There’s a high probability that the changes we see in these data reflect the federal or partnership exchanges’ efforts to expand healthcare coverage … The rates of uninsured are coming down nationally. They are not coming down uniformly in all states, but even those states that have not implemented the Medicaid expansion, and have defaulted to the federal marketplace or state/federal partnerships, have seen a statistically significant decline.”

Republicans’ Obamacare Contingency Plan is MIA

Talking Points Memo: “For Republicans, winning the potentially decisive vote of Chief Justice John Roberts to gut a centerpiece of Obamacare could hinge on persuading him that the health care system won’t descend into chaos if he grants them their wish.”

“So Republican leaders are eager to convey to the chief justice, who is protective of the Supreme Court’s institutional legitimacy, that they will be ready to act. There’s virtually no chance Republicans will have a contingency plan ready by March 6, when the justices will meet privately to decide the case, and doubtful that they’ll be able to rally around a solution by the end of June, when a ruling is expected.”

“One conservative source close to the case recently explained that the Republican discussions about contingency plans were largely aimed at the chief justice. The source, who requested anonymity to speak candidly, described it as an attempt to ‘make the world safe for Roberts to overturn’ the subsidies and to ‘not let our guys look like they’re going crazy and letting the world spin into chaos.'”

“That’s easier said than done. Scratch beneath the surface and the GOP effort to devise an alternative is a mess.”

Killing Obamacare by Legal Assassination

Timothy Egan argues that “Republicans are attempting one of the most brazen manipulations of the legal system in modern times. To pull it off, they’re relying on a toxically politicized judiciary to make law, and to make a mockery of everything that conservative legal scholars profess to believe.”

“In less than two weeks’ time, the Supreme Court will hear oral arguments in King v. Burwell — the net result of a well-orchestrated, well-financed, five-year campaign to kill President Obama’s signature achievement by legal assassination.”

“So, consider just who stands to lose most if the health care subsidies for people in two-thirds of the states are denied … More than 80 percent of them are lower- or middle-income people, working part time or full. Most of them are white. And majority of them are in the South. So much for helping your base.”

“So long as judges do their dirty work, Republicans don’t have a problem with politicizing the judiciary.”

Obamacare Decision Could Cost Billions

Greg Sargent: “If you want a sense of just how far-reaching the impact of a Supreme Court decision gutting Obamacare subsidies could prove, new data on health care signups released this week provide a fresh way to game out such a ruling’s consequences.”

“The new HHS data also provides a breakdown of the number of sign-ups in each of the three dozen states on the federal exchange — precisely the states that would no longer get subsidies if the Court invalidates tax credits to people in all federal exchange states.”

“This provides a way of approximating just how much money in tax credits each state could lose if the Court rules that way … Here it is in chart form (a note on methodology is below), detailing the impact of such a ruling on the 14 states that stand to lose the most:”

tax credits for GS

“The column on the left details the approximate total number of people in each state who qualify for subsidies. The middle column details the average amount in subsidies per person. And the column on the right details the approximate total number of dollars per month that are set to flow into each state — money that would presumably stop flowing if SCOTUS guts the subsidies.”

A Republican Flip-Flop on Obamacare

Greg Sargent comments on Glenn Kessler’s article regarding Republicans’ interpretation of the Affordable Care Act.

“GOP Senators John Cornyn, John Barrasso, and Orrin Hatch, along with Rep. Paul Ryan, are all previously on record making statements that appear grounded in the assumption that subsidies would be available to people who got health care on the federal exchanges, in addition to state ones. The King lawsuit, of course, alleges that the ACA does not authorize subsidies to all those people, and now, Cornyn, Hatch, and Ryan have signed a brief siding with the challengers. Meanwhile, Barrasso is openly rooting for the Supreme Court to ‘bring down’ the law.”

“Some of these statements have been previously aired. What’s new here is that these Senators and their spokespeople have now attempted to explain their shift in views. Most of their explanations, Kessler concludes, are pretty weak, and amount to an ‘unacknowledged flip-flop.’”

“Cornyn has perhaps the weakest defense … His concerns about the budget make little sense if one believes that the citizens in about three-quarters of the states would not qualify for premium subsidies.”

“The more media scrutiny this lawsuit receives, the more trumped-up and circus-like it looks. And there are still plenty of questions about it that remain unanswered.”

Obamacare’s Success Raises Stakes for SCOTUS Case

New York Times: “The Obama administration said Wednesday that 8.6 million people in 37 states had selected or renewed health plans through the federal insurance marketplace, and that most of them would suffer if the Supreme Court blocked premium subsidies for consumers in those states.”

“That group is part of the 11.4 million people who President Obama said the day before had signed up in the enrollment period that ended on Sunday. Consumers using the federal marketplace accounted for three-fourths of the total.”

Sylvia Mathews Burwell, the secretary of health and human services, said it was “inconceivable that Congress meant to deny premium assistance to them — simply because their states did not set up exchanges — while providing it to residents of New York, California and other states that run their own insurance marketplaces.”

“In a comment that sounded like a message to the Supreme Court, just a few blocks from her office, Ms. Burwell said, ‘Americans don’t want the progress that we have made to be taken away from them.’”

Immigration Ruling Savages Attempts to Address Nationwide Crisis

New York Times Editorial Board comments on the decision by Federal District Judge Andrew Hanen, of Brownsville, Tex. to block the first of President Obama’s immigration programs.

“Gov. Greg Abbott of Texas was so excited at Monday’s decision that he jumped on Twitter to say Mr. Obama’s amnesty order ‘has been ruled unconstitutional.’”

“No, it hasn’t.”

“What he did not do was dispute the president’s broad authority to decide whom to deport, which is exactly what the Obama administration did in prioritizing the removal of immigrants who pose a threat to public safety or national security. Yet the judge blocked the action, which he called ‘a massive change in immigration practice.’”

“He danced around the fundamental point — as the Supreme Court reiterated as recently as 2012 — that setting immigration policy is the prerogative of the federal government, not the states.”

“On immigration, the Republicans seem to want only to savage the president’s efforts to address a pressing nationwide crisis, just as they have on health care reform. They are good at unleashing rage against Mr. Obama’s supposed lawlessness, but they have no meaningful solutions of their own.”

Which Supreme Court Justice Could Save Obamacare?

Sam Baker in the National Journal: “Obamacare’s future rests with one of the Supreme Court’s conservative justices … Lawyers on both sides of the case are divided over who is more likely to cast that vote: Chief Justice John Roberts, or Justice Anthony Kennedy.”

“Making things more difficult: In King v. Burwell, the case challenging Obamacare’s subsidies in most of the country, the arguments most likely to appeal to Roberts and the arguments most likely to appeal to Kennedy aren’t necessarily the same.”

“It’s not a constitutional question. It’s about interpreting the text of the statute—an area of law that increasingly belongs to conservatives, including Roberts.”

“Roberts shies away from broad constitutional questions because he doesn’t want to take power away from Congress. He would much rather say, ‘Congress, you screwed up; try again,’ than, ‘Congress, you can’t do that at all.’ ”

The concern is that “the justices will rule, essentially, that there’s a glitch in the Affordable Care Act, but that it’s not their job to fix it. Such a ruling would be extremely damaging to Obamacare, but might seem entirely consistent with Roberts’s version of judicial minimalism.”

“Statutory interpretation and textualism are important to conservatives like Roberts and Scalia, but that’s never been Kennedy’s wheelhouse. He’s much more likely to make his mark on constitutional questions—and to consider broader issues, like the overarching purpose of a law, in statutory interpretation cases. He might be open to the Justice Department’s argument that Congress intended for subsidies to be available in both state-run and federally run exchanges, irrespective of that ‘established by the State’ language.”