Tuesday Reads: Will John Roberts Exercise His Option to Kill Obamacare?
Posted: November 11, 2014 Filed under: just because 37 Comments
Good Afternoon!!
I had a strange computer problem this morning–actually not a computer problem per se, but a browser problem. I finally got it solved, although I don’t quite understand why it happened. So here I am, a little later than usual.
I’m going to focus this post on the Supreme Court challenge to the Affordable Care Act (AKA Obamacare) in the form of King v. Burwell, the case SCOTUS announce it will hear next year. From Think Progress:
In a surprise move late last week, the Supreme Court agreed to hear the case of King v. Burwell, a lawsuit seeking to strip premium tax credits from people living in states with a federally-operated insurance marketplace. If the lawsuit, which employs an overt misreading of the Affordable Care Act, is successful, it would hike premiums by triple digits and make health coverage unaffordable for millions of Americans. We have written about the case before, when a panel of the Fourth Circuit Courts of Appeals ruled on it and unanimously upheld the law. But that wasn’t enough for at least four Justices, who now think it worthwhile that the case be argued in front of the nation’s highest court.
Make no mistake, the lawsuit is a strategic attempt at repeal by another name by ideological conservatives.
We don’t have any way of knowing for sure which justices voted to hear the case, but we can be sure that they included Scalia, Thomas, and Alito. Was the fourth vote to take the case that of Anthony Kennedy or Chief Justice John Roberts? You’ll recall that in 2012, Roberts supposedly “saved” the ACA by vote to allow the government to invoke a penalty for people who did not sign up for some kind of health insurance. Unfortunately, the SCOTUS decision also severely wounded the ACA by permitting governors to refuse to accept the Medicaid expansion that made it possible for people who could not afford health coverage to receive government subsidies.
Here’s Jim Newell at Salon in April of this year: John Roberts didn’t “save” Obamacare — he gutted it.
Nearly two years ago, by a 5-4 decision, the Supreme Court allegedly “upheld” Obamacare. More specifically, the thinking at the time went, it was Chief Justice John Roberts who, in a herculean act of statesmanship, cast the deciding vote to “uphold” Obamacare….
John Roberts certainly could have done much more damage to the law, had he chosen to. He could have joined the four other conservatives on the bench who were prepared to take down not just the individual mandate, but the entire law itself. What a peach.
Still, as early estimates of the newly ensured under Obamacare’s implementation are rolling in, it’s time to write a second draft of history — one that doesn’t include anything about John Roberts “upholding” or “saving” Obamacare. Because that’s an odd way to describe a decision that gutted the most effective part of the law.While the White House was popping champagne over the survival of the law’s requirement for individuals to obtain health coverage or suffer a tax penalty, Republican-held state governments were more focused on that “other” part of the majority decision: the one that allowed states to opt out of the law’s Medicaid expansion and suffer no consequences to its pre-expansion Medicaid funding. The White House, at least publicly, blew this off. “Senior Obama administration officials downplayed the impact of the Medicaid portion of the court ruling, saying as a practical matter it is not particularly significant,” the Wall Street Journal reported at the time. After all, the thinking went, what state would be crazy enough to turn down all this money — an expansion that the federal government would fund 100 percent of in the beginning, and 90 percent of permanently?
Two years later, we have the answer: Many, many states would be precisely that crazy! Let’s call it two dozen. The Kaiser Family Foundation breaks it down as 19 states “not moving forward at this time,” while the issue is under “open debate” in five states. And it is definitely not certain that those “open debates” will produce Medicaid expansions.
How many of those states reelected the governors who screwed them out of lower health care costs? I haven’t checked for sure, but offhand, I’d say most of them are still in office.
Now we face another challenge, and John Roberts will have to decide whether or not to completely destroy the ACA. Paul Waldman at The American Prospect: Republicans May Finally Get Their Wish to Watch the Affordable Care Act Destroyed.
On Friday, the Supreme Court agreed to hear the case of King v. Burwell, perhaps the last gasp in the Republican attempt to use the courts to destroy the Affordable Care Act. The reaction to this news among liberals was, to put it mildly, shock and dismay. Simply put, the lawsuit is a joke, and the fact that any judge, let alone a justice of the Supreme Court (not to mention five of them) would do anything but laugh it out of court is a testament to just how shamelessly partisan Republican judges have become. At least four justices have to consent to hear a case, so it’s possible that there will still be five votes to turn back this stink bomb of a case. That will probably depend on the good will of John Roberts, something I wouldn’t exactly want to stake my life on. But lives are indeed at stake.
There are a couple of optimistic scenarios for how this could all turn out, and I’ll explain why I suspect they’re wrong. But in case you haven’t been following, this case rests on what is essentially a typo in the ACA, where it refers in one spot to subsidies provided to Americans in health insurance exchanges “established by the state.” The conservative activists who brought the suit contend that these three words prove that Congress did not intend subsidies to be available in states that declined to set up their own exchange and therefore defaulted to the federal exchange. (There are 36 such states.) They manage to argue this with a straight face—or perhaps a cruel smirk might be a better description—despite the fact that every member of Congress, congressional aide, journalist, and everyone else who was there at the time agrees that no one ever contemplated the insane idea that Americans in states using the federal exchange would be ineligible for subsidies.
The subsidies, tax credits, and Medicaid expansion are what allow the ACA to make health insurance Affordable for millions of Americans.
According to the Department of Health and Human Services, 8 million Americans got private insurance through all the exchanges in their first open enrollment period, and 5.4 million of those were in the federal exchange. Of those, 86 percent, or 4.7 million, received subsidies to make their insurance affordable. If this lawsuit is successful, those millions would all lose their subsidies. Many, if not most, would probably be unable to purchase insurance and would rejoin the ranks of the uninsured. Then premiums for the remaining people in the exchanges would skyrocket, insurers would drop out, and the result would be a death spiral that not only destroys the exchange altogether but also undermines, perhaps fatally, the other two legs of the “three-legged stool” that comprises the ACA: the requirement that insurers accept all customers regardless of pre-existing conditions, and the individual mandate. (If you’d like details on how this would happen, you can read this amicus brief filed by 49 distinguished economists who study health care.)
Keep in mind that by the time the SCOTUS decision is handed down in June of next year, Congress will be completely controlled by Republicans, so there’s zero chance the typo in the law will be fixed, since it hasn’t happened with the Democratic Senate.
This is, of course, just what the conservatives wish for. The purpose of their campaign is to destroy the Affordable Care Act; the swath of human misery, stretching from horizon to horizon, to be left in that campaign’s wake is precisely the point. Among all the acts of cynicism and deception that this debate has featured in the last five years, this lawsuit must surely rank near the top for its sheer villainy.
But now it looks like the conservatives on the Supreme Court are ready to sign on. We know already that four of the justices—Antonin Scalia, Clarence Thomas, Samuel Alito, and Anthony Kennedy—were willing to junk the law in the first case in which it was upheld, with Chief Justice Roberts siding with the liberals to sustain it (albeit while undermining its expansion of Medicaid). So any optimism on this case rests in large part with the assumption of Roberts’s continued unwillingness to destroy the law.
Since we can’t know which four justices voted to hear King v. Burwell, we have no clue what Roberts is going to do.
Meanwhile, the Obama administration has already scaled back expectations for new signups. The Hill reports:
Officials at the Department of Health and Human Services (HHS) on Monday projected that up to 9.9 million people would be enrolled in ObamaCare in 2015, millions fewer than Congressional Budget Office (CBO) estimates.
Federal health officials are projecting that ObamaCare enrollment will include at least 3.1 million fewer people next year than congressional budget analysts thought.
HHS, which previously declined to project 2015 sign-ups, said that between 9 million and 9.9 million people are expected to participate in the exchanges in 2015.
The figure was less than the CBO’s projection of 13 million for 2015 enrollment, raising questions about the exchanges’ performance, compared with expectations.
Or maybe HHS is projecting that millions of people won’t sign up for a plan knowing that SCOTUS could pull the rug out from under them 6 months later.
Simon Malloy at Salon argues that Republicans could be in trouble if they get their wish and Roberts votes with the rest of the conservatives on the Court to kill Obamacare.
But, for the moment, let’s assume that the SCOTUS conservatives carry the day and successfully eviscerate the Affordable Care Act by invalidating the tax credits offered through the 36 state exchanges run by the federal government. In many ways this would seem to offer an ideal political scenario for the Republicans. A legislative repeal of the Affordable Care Act isn’t going to happen, even with a Republican-controlled Congress, owing to the president’s veto pen. But if the Supreme Court steps in and guts the law for them, then they get their preferred policy outcome without having to do any of the actual dirty work. No fuss, no muss.
But it’s not at all that simple. The biggest political challenge facing the GOP is the fact that “repealing” or otherwise damaging the Affordable Care Act, while ideologically satisfying, carries with it some very real consequences. The states that opted not to create their own health exchanges – the states that would lose their health insurance subsidies if SCOTUS rules against the government – are mostly Republican-governed states. The sudden unavailability of those tax credits would mean that a lot of newly insured people in those states would no longer be able to afford their health coverage. They will expect their elected officials to do something to mitigate the damage, which would be catastrophic. Close to 5 million people across the country would see their health insurance costs spike.
That would pose an awkward situation for Republicans in the statehouses and Congress: Do they stick to their ideologically acceptable rigid opposition to Obamacare, or do they work to fix the law? Congress has the ability (if not the willingness) to pass a quick legislative fix to solve the problems. Governors could agree to set up exchanges within the state to keep the subsidies flowing. These are the simplest paths to resolving the issue, and there would be intense pressure to get either or both done.
I just don’t buy it. Republicans would blame the mess on President Obama and the federal government and the mass of low-information voters would believe them.
I’ll end there, but here are a few more links of interest on this subject:
Think Progress, Meet Jennifer, A Woman Who Could Die If An Anti-Obamacare Lawsuit Succeeds.
Brian Beutler at The New Republic, How John Roberts Can Preserve His Conservative Cred and Save Obamacare at the Same Time.
Jeffrey Rosen at The New Republic, John Roberts’s Legacy May Be Decided in the Next Few Months.
Dana Millbank at The Washington Post, Why Obamacare risks falling into a ‘death spiral’.
What do you think? What other stories are you following today? Please share your thoughts and links in the comment thread.
peej
Carissa
ecocatwoman
mablue2
Mama Lopez
peggysue22
quixote
skydancingguestblogger
Mona (aka Wonk the Vote)
Sky Dancing 
Here’s a bit more from Paul Waldman’s excellent piece at The American Prospect:
Why do Republicans hate every one but the rich? It’s just awful!
They are hateful people.
If I were to guess I would say the odds are pretty strong in favor of Roberts voting against ACA.
He found himself at the mercy of the Right Wing who decried his previous vote in favor of it and now sees an opportunity to get back in their good graces by stomping it out.
This court is truly a tool of the Right Wing fanatics. It is all about politics and has drifted further and further from the Constitution with its rulings going back to 2000 in finding in favor of George W. Bush as “elected/unelected” president. It has been wholly Right Wing ever since.
My prediction is if the ACA is defeated in 2015 from rulings by this court, the next item on the menu will be abortion rights. The radicals have been waiting for years for this one to come back onto the docket and I have a feeling that ACA opens the door for another ruling.
Who says elections don’t count? The SC is just one example of how far we have drifted into the arms of the religious nuts and corporate desires.
Another “peek” at their agenda will more than likely be school prayer, Social Security, and the environment.
A winning majority in both Houses almost automatically favors these issues to be brought to the forefront.
I think there’s a good chance Roberts will kill the ACA too. The only problem is that if he votes against tax credits, that will be in serious conflict with all the other laws that allow tax credits for individuals and especially businesses. Then what?
I’m also worried about what this may mean for Medicare.
The court is also going to be deciding a case on same-sex marriage. Will Roberts vote to kill that too?
I’m getting tired of boomers getting blamed for what Ronald Reagan did to this country.
Sigh . . . baby boomers created supply side economics? Ronald Reagan was no baby boomer. Why won’t Americans even learn a little about recent history?
The majority of Republican voters are over 65. That’s only 2 years worth of Boomers. That’s hardly the majority of us.
That Willies guy was one of the people behind the lame ass Coffee Party. Remember that so-called answer to the tea party.
Not all of the over-65 boomers vote Republican. I never have. My mom is 89 and she votes for Democrats. She’s never missed an election, not even local ones.
Liberals just get more set in their liberal ways as they get older!
I just wrote almost the exact words on BB’s FB page….the ills of civilization are all our fault.
Damn, that was stupid. I commented and imagine heads may explode.
Good one. Thanks of behalf of all of us.
Great comment, Ralph. Next to yours, mine sounds namby-pamby.
Thank you Ralph.
Liberal America: Responding To The Shallow ‘Open Letter To Democrats From A Disillusioned Voter’
A very good response.
What happened to just voting because it’s the right thing to do?
I love the way these people characterize all older people as Republicans. Quite a few of us went out and voted for Democrats even though we knew it might be a lost cause. Because we always vote. It’s part of being a citizen.
It might also be noted that many of them wouldn’t have the right to vote if they’re under 21 without boomers either
Interesting post. The author says her question has been ignored by all her male friends and acquaintances and many have unfollowed her on Twitter.
What Are Men Doing to Challenge and Stop Gender Violence?
Well, you know the cock must not be blocked!
This was getting a lot of play yesterday on twitter: http://www.usatoday.com/story/opinion/2014/11/03/street-harassment-catcall-video-race-women-gender-equity-column/18373531/
Elon James White’s twitter account has a of the replies to it.
Good grief! Glenn Reynolds is writing for USA Today now? He’s the founder of Instapundit, a real right wing nut.
Of course, Republican governors could generally care less.
http://www.washingtonpost.com/blogs/wonkblog/wp/2014/11/11/how-states-could-avert-a-supreme-court-obamacare-disaster/?Post+generic=%3Ftid%3Dsm_twitter_washingtonpost
NOT.GOOD. Wealth and income from gambling in exotic investments is never good for an economy.
Robert Reich:
The Real Reason Behind the Democrats’ Big Midterm Losses
Josh Marshall had a piece yesterday with the same conclusions. He went into some of the causes such as globalization etc and was wondering what policies might fix the problems. I admit that, outside of a round of inflation, I don’t have much of a clue.
It’s what I said in my post-election post too, but of course I didn’t have all the numbers in front of me. As for policies to fix it, how about some good old New Deal and Great Society-type programs? The infrastructure in this country is crumbling, schools need help–put people to work doing things that are needed for the good of all.
But of course that’s not how America rolls anymore.
That seems so obvious, doesn’t it? Put people to work! There are thousands of public-service projects that need to be done. Plus the maintenance or replacement of infrastructure. Then we get good projects completed, and people have money to spend.
OTOH that doesn’t fatten the pockets of the rich as well as keeping things the way they are now does.
It’s now less about unemployment and more about income stagnation. Infrastructure projects would give some underemployed people better jobs and is desperately needed. I don’t know that it would cause gains in higher paid, but stagnant income, positions. Seems to me this may be a structural problem with the global economy. Businesses will have to be forced to pay more, without going overseas, and unions would be one good way to go. The issue is unions have been demonized in the US.
That’s very true. Most of all, I think we need to get past the Reagan/Ayn Rand selfishness culture. Most people no longer seem to have a sense of “we’re all in this together.” Was it WWII that created that feeling in the country when I was young? Or was it the Depression.
My parents’ generation was strongly influenced by having FDR as president for so long. My Mom told me it was like losing a family member when he died. The younger generations today have lived all their lives in the shadow of Reaganism–selfishness and mean-spiritedness.
Here’s Josh’s piece…
tpm: Forget the Chatter, This is the Democrats’ Real Problem
Well then there is the untold story. Our favorite bar/restaurant pays its bartenders $2.13 per hour. That’s their LEGAL wage. The rest is expected to be made up in tips. They are charged, automatically, 10% for their tips which means they must pay taxes on 10% whether or not they receive a tip. As well, when they ring up a gift card, for which they receive no tips, ever, according to IRS regulations, the bartenders must pay tax on 10% of the gift cards sold. And THAT’S legal. Workers are so fucking screwed in this country and nobody knows about it.
They are charged, automatically, 10% for their tips which means they must pay taxes on 10% whether or not they receive a tip.
That was another one of Team Reagan’s genius ideas.
I remember it well; for the first time, in 1982, I had to ask my father for help to pay my taxes.
I know I’m naive, but it never ceases to amaze me how working people get consistently screwed in this country.