Obamacare

The Good, The Bad and The Infuriating Aspects of Ted Cruz Signing Up for Obamacare

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attribution: none

The Daily Banter – Bob Cesca

On one hand, Sen. Ted Cruz (R-TX) signing up for an Obamacare health insurance policy is fantastic news. As we discussed yesterday, Cruz had a number of options at his disposal after losing his health insurance coverage due to his wife taking a leave of absence from Goldman Sachs. And no, he isn’t required to buy an Obamacare policy, so he absolutely had options.

But before we recap his options, it’s important to underscore that contrary to what many observers were suggesting throughout the day Tuesday, no — the law does not mandate that all members of Congress and their staffers enroll in an Obamacare exchange plan. Or else. The law merely states that exchange plans are the only plans offered to congressional employees, including members of Congress. Here’s the text from the ACA (emphasis mine):

SEC. 1312. CONSUMER CHOICE. (d)(3)(D) MEMBERS OF CONGRESS IN THE EXCHANGE-

(i) REQUIREMENT- Notwithstanding any other provision of law, after the effective date of this subtitle, the only health plans that the Federal Government may make available to Members of Congress and congressional staff with respect to their service as a Member of Congress or congressional staff shall be health plans that are–

(I) created under this Act (or an amendment made by this Act); or

(II) offered through an Exchange established under this Act (or an amendment made by this Act).

In other words, members of Congress can do whatever they want, but the government is no longer offering the old Federal Employees Health Benefit Program (FEHBP) to members and their staff — only the exchange plans under Obamacare. And since the Office of Personnel Management (OPM) is continuing to pay 72 percent of the premiums (the truth behind the so-called “Obamacare exemption for Congress”), the best value for members and especially staffers is to sign up for an Obamacare plan.

If Cruz doesn’t have to sign up for an Obamacare plan, what were Cruz’s other non-Obamacare options?

He could’ve immediately enrolled in COBRA, which would’ve allowed Cruz and his wife to keep their existing policy. He could’ve signed up for an Obamacare policy as an individual, like some members of Congress are doing to sidestep the so-called “illegal” premium sharing plan implemented by the OPM (continuing the policy of premium sharing from Congress’ previous health insurance program). Or he could’ve simply enrolled directly with an insurance provider in his state.

And what did Cruz choose instead of all of these alternatives? He chose his arch-nemesis: Obamacare. Why? Because none of the above options would’ve included the 72 percent premium sharing from the government. And the plans offers, probably one of the Gold-level plans is likely comparable to his wife’s Goldman Sachs plan. So, not only did Cruz basically endorse the Obamacare option, but he did so in part because of Obama’s allegedly impeachment-worthy decision to continue the premium sharing plan for Congress.

All told, this was almost a de facto endorsement of Obamacare. Ted Cruz, of all people, thinks Obamacare is the best deal for his family. The hypocrisy angle is almost a sideshow compared with this. Cruz filibustered Obamacare. He helped force a government shutdown over Obamacare. He’s lied dozens of times about Obamacare. And now he’s basically saying, “Hey, this Obamacare thing and the employer premium thing that I’m opposed to — really great deal!” So, again, for a rabid Obamacare enemy to pull off an inadvertent Nixon-to-China moment is a huge endorsement of the law.

On the other hand, it should also infuriate anyone who has an insurance policy due to or via Obamacare.

I’m personally just now reaching the contemptuous anger stage in my coverage of Ted Cruz this week, precisely because of this story. If Cruz makes it all the way to the White House (he won’t, but let’s — cough — imagine) one of the first things he’ll do is to repeal Obamacare, thus stripping me and 16+ million other Americans of our insurance policies. Repealing “every word” of the law also means repealing the part about pre-existing conditions, which would subsequently allow my insurance company to either dump me or to jack up my premiums beyond affordability.

Meanwhile, Cruz won’t have to worry about his current Obamacare plan once he’s president. Why? Because he’ll be covered by the other government-run health insurance program, FEHBP — the aforementioned Federal Employees Health Benefit Program. There’s something wickedly unfair about this scenario, not that it’ll ever happen but that he’d jump at the chance if he got it. It’s like blowing up a bridge just after he’s managed to make it across. Screw everyone still on the bridge.

You know what this is like? President Glenn Greenwald ordering a series of drone strikes. It’s like Ayn Rand receiving Social Security and — wait, never mind. She did. Someone said to me yesterday that I probably didn’t return any of the money I saved from the Bush tax cuts. Well, no, I didn’t. I also didn’t oppose the tax cuts for middle class earners (my income level at the time), going so far as to filibuster those cuts on the Senate floor and voting dozens of times to repeal them. It’s more than hypocrisy. It’s about the decision to sign up for something he’s all along claimed to hate, but now thinks is a pretty good deal — only after misleading millions of Americans into hating the bill and therefore electing more lawmakers who want to kill it.

Ultimately, though, I’m filing this particular chapter in the Ted Cruz saga into the same folder with stories about radically anti-gay Christian evangelists getting caught having same-sex affairs. Hypocrites, yes. But also iron-fisted persuaders who influenced and indoctrinated millions before committing their hypocritical deeds. The hate lives on.

A Supreme Court decision against Obamacare could cost states billions and billions of dollars

Washington Post ~ 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 Department of Health and Human Services announced the other daythat some 11.4 million people have signed up for health plans through federal marketplaces. 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. We’re talking about enormous amounts of money: Florida could lose nearly half a billion dollars per month in subsidies to its constituents. Texas could lose a quarter of a billion dollars per month. North Carolina and Georgia could each lose over one hundred million per month.

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:

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.

This methodology was suggested to me by Larry Levitt, a senior vice president at the Kaiser Family Foundation who may know more about the Affordable Care Act than anyone else alive. He says one reasonable way of trying to calculate total subsidies per state is to take the total number of new signups in each state, and multiply that by the percentage in each state who qualify for tax credits, data that is also supplied by HHS. That produces the approximate total in each state who qualify for subsidies (the left column).  You then multiply that by HHS data detailing the average monthly subsidy payment in each state (the middle column), and it gives you the approximate total in monthly subsidies to each state (the right hand column).

A few caveats: First, these calculations are very rough and approximate. The data on the percentages who qualify for subsidies and on average monthly subsidies are a little bit older than the newest data on total signups (but they probably won’t change much). Also, not all of the people who signed up will end up paying, so these totals will likely drop somewhat, though it’s hard to know how much. Still, Levitt says this is a good way of trying to gain a rough sense of how much money in each state we’re talking about here.

“This a very reasonable approach to estimating the amount of federal subsidies people living in these states will receive,” Levitt says. “Billions of dollars are flowing to low and middle income people under the law, and most of those are going to people in states using HealthCare.gov. This makes it very tangible: If the Supreme Court sides with the plaintiffs, states would be losing in some cases hundreds of millions in federal money per month.”

If defenders of the law get their way, numbers like these could end up having legal significance. A number of states have argued, in a brief filed for the government’s side, that the plain text of the ACA contains noexplicit threat to withdraw subsidies from states that fail to set up exchanges. Thus, they argue, if the Supreme Court guts subsidies, it would impose a “dramatic” hidden punishment on them and their residents for their decision not to set up an exchange, despite the fact that they had no clear warning of the consequences of that decision. This raises serious Constitutional concerns, and as a result, the states argue, the Supreme Court should opt for the interpretation of the statute that doesn’t raise those concerns — the government’s interpretation that subsidies are universal.

This federalism argument, which has been expanded upon by law professors Nicholas Bagley and Abbe Gluck, could potentially appeal to Anthony Kennedy or possibly to John Roberts. The fact that the states stand to lose such enormous amounts in subsidies to their residents could help underscore that case.

Indeed, all of this suggests that a SCOTUS ruling against the ACA could create real problems for GOP lawmakers in many states. Reuters reportsthat officials in some states are currently scrambling to figure out what to do in the event of such a ruling. Even state officials who want to respond by setting up their own exchanges — keeping subsidies flowing — tell Reuters they may not be able to do so for political and other logistical reasons, meaning they’d lose subsidies even if they don’t want to. In Ohio, for instance, GOP governor John Kasich has suggested he wants to come up with a fix but doesn’t seem clear on what. It’s perhaps not surprising, then, that relatively few red states have signed a brief in support of this lawsuit.

Meanwhile, Republicans in Congress are working hard to convey the impression that they might have a contingency plan in place — or even their own alternative health reform — for those who might lose subsidies and coverage. Such feints are probably just designed to persuade the Justices that the consequences of an anti-ACA ruling might somehow not prove so dire. But, taking those Republicans at their word, numbers such as the above provide a useful way to judge any such contingency plans or alternatives: Do they come anywhere close to covering the same numbers of people?

Conservatives might seize on these sums of money for their own purposes.Some on the right are arguing that, if SCOTUS does gut subsidies to millions, Republicans must not offer a fix that spends anything close to the same amount in subsidizing those people’s health care, and instead must advocate for a return to a pre-Obamacare baseline level of spending and propose “free market” solutions instead. These conservatives will likely argue that such huge expenditures as those detailed above underscore their point.

As I’ve repeatedly written, I think there’s a decent chance the Justices could side with the challengers. The massive amounts of money at stake underscore that if this does happen, a whole new political and policy story will unfold from there, with consequences that no one should pretend to be able to predict.

The White House’s unlikely ally at the Supreme Court

A view of the Supreme Court, Jan. 16, 2015 in Washington, DC. (Photo by Drew Angerer/Getty)

A view of the Supreme Court, Jan. 16, 2015 in Washington, DC | Drew Angerer/Getty

MSNBC ~ Rachel Maddow Show

In recent years, one group has had more success at the Supreme Court than any other. It’s not Republicans. It’s also not conservatives, per se. It’s not the NRA, the Koch brothers, or the religious right movement.
In Justice John Roberts’ court, there’s been a lot for the right to like, but Big Business and Corporate America have consistently found a friendly ear among the majority of the sitting justices. With this in mind, Stephanie Mencimer’s report last night stood out as especially significant.
If getting rid of Obamacare is such a good idea, why isn’t corporate America getting behind King v. Burwell, the Supreme Court case designed to demolish the Affordable Care Act? More than 52 different parties have weighed in with briefs in advance of oral arguments on March 4…. But not a single business group – not the US Chamber of Commerce, not any of the health industry companies and trade groups that opposed the law when it was being drafted – has presented a brief endorsing this lawsuit.
These outfits are either backing the Obama administration’s attempt to defeat the suit or sitting out this case. Briefs in the case help explain why: Obamacare is working.
Mencimer pointed to a brief filed by the Hospital Corporation of America (HCA), the nation’s largest health care provider, which described the argument underpinning King v. Burwell as “absurd,” while also making the argument that the system at risk in this case is working quite well, both for the public and for America’s hospitals.
What’s more, it’s not just private medical institutions pushing against the ridiculous litigation. National Journal reported a couple of weeks ago that private insurers are doing the same thing.
In an amicus brief filed Wednesday, health insurers said a ruling against the subsidies would have widespread and severe ripple effects, potentially throwing states’ entire insurance markets into chaos.
Stopping the flow of subsidies “would create severely dysfunctional insurance markets” in 34 states, America’s Health Insurance Plans, the industry’s leading trade organization, said in its amicus brief. “It would leave consumers in those States with a more unstable market and far higher costs than if the ACA had not been enacted.” […]
AHIP … said the state and federal exchanges work the same as a practical issue. The subsidies and the law’s individual mandate are part of an interconnected series of policies designed to stabilize insurance markets, AHIP said – irrespective of who runs the exchange in any particular market.
We generally think of Big Business and Corporate America aligning themselves with Republicans, and for good reason; that’s usually true. But on the Affordable Care Act, which Republicans like to pretend is bad for the private sector, the usual partisan lines are blurred – the White House, insurance companies, hospitals, and even pharmaceutical companies are all telling the Supreme Court that this stupid case is genuinely dangerous, both to the American public and the American marketplace.
And that’s no small development. It’s quite easy to imagine Republicans on the Supreme Court ignoring the White House and deliberately gutting one of President Obama’s accomplishments, but it’s tougher to imagine those same justices blowing off private-sector leaders – the same corporate leaders hoping to avoid systemic chaos and shattered balance sheets.

Top GOP Senator: Maybe We Won’t Act If SCOTUS Guts Obamacare

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AP Photo / J. Scott Applewhite

TPM LiveWire

“We want to be responsible about repairing any damage that Obamacare does,” Alexander said, according to a Politico article published Tuesday. “If it creates a shock to the system by causing 5 million Americans suddenly to put their insurance and their subsidies at risk, then we need to think if there’s anything we need to do. Maybe there’s not.”

His remarks reflect the difficulties that Republicans are having when it comes to devising a health care plan of their own, as TPM documented last week. They also indicate that GOP leaders may be changing their tune after insisting that they’ll respond if the Court rules against the Obama administration in King v. Burwell, slated for a decision by the end of June.

Some conservative members don’t want the party to act on a replacement at all. In the House, Reps. Steve King (R-IA) and Jeff Duncan (R-SC) introduced an amendment to the latest Obamacare repeal bill that strips out language calling for the party to craft an alternative.

Disaster Looming For Republicans As Poll Finds 64% Want To Keep Obamacare Subsidies

Obama_On_Computer

President Obama | White House Photo

PoliticusUSA

A new Kaiser Health Tracking Poll found that Congressional Republicans are living in a difference universe from most Americans. The poll found that 64% of Americans want to Congress to act to restore ACA subsidies if the Supreme Court rules against the health care law.

Via the Kaiser Family Foundation:

Kaiser-chart

If the Supreme Court rules that financial assistance is only available in states with state-run marketplaces, nearly two-thirds of the public says that Congress should take action so that people in all states can be eligible for financial help to purchase health insurance. Majorities of Democrats and independents say they would support Congressional action while Republicans are more divided. And, although the Supreme Court’s decision would have significant implications for many people in states using the federal exchange, their views are similar to those of people living in states with their own marketplace.

A nightmare scenario for Republicans would unfold if the Supreme Court ruled the ACA subsidies unconstitutional in states that have not set up their own exchanges. Republicans are committed to killing the ACA. Their most ardent supporters want to kill the law. The problem is that nearly two-thirds of the American people want congressional Republicans to act to protect the subsidies if the Supreme Court rules them unconstitutional.

Millions of people will lose their health care if the subsidies go away. The fate of the subsidies would become a big issue in the 2016 presidential election, and the Republicans will be trapped between doing what a majority wants and what their right-wing ideological base wants. A Supreme Court ruling against the subsidies would be a disaster for the Republican Party. If Congressional Republicans refuse to act to restore, the subsidies voters will blame them for the loss of their health care.

The House has announced that they will vote to repeal the ACA next week. Only 32% of those polled in Kaiser poll want the law repealed. Congressional Republicans are completely out of touch with the majority of Americans on the issue of the ACA. If the Supreme Court rules against the subsidies, the conservative justices will be dropping a ticking time bomb into the laps of Republicans.

No matter how the Supreme Court rules, this won’t end well for the GOP.

Poll: Americans hate Obamacare (until they use it)

America Blog

Oh America, you are adorable.

Back in 2010, a Newsweek poll showed that Americans “hate” Obamacare, but loved it component parts.

Even Republicans, who “loathe” Obamacare, overwhelmingly support most of the legislation’s key provisions.

Doc via Shutterstock

So it’s shouldn’t come as a surprise that a new Gallup poll shows Americans, yet again, hopping mad about Obamacare.

But as CNN notes, another Gallup poll shows that the actual people who use Obamacare, love it:

Over seven in 10 Americans who bought new health insurance policies through the government exchanges earlier this year rate the quality of their healthcare and their healthcare coverage as “excellent” or “good.” These positive evaluations are generally similar to the reviews that all insured Americans give to their health insurance.

The people who hate the Affordable Care Act are generally people who have no idea what it even does, and who aren’t affected by it at all.

There are a number of lessons here:

1. Democrats stink at messaging.

2. Republicans are awfully good at messaging.

3. Lying doesn’t tend to impede the success of the GOP message machine.

4. Americans are seldom shy about having a strong opinion on something they know nothing about.

In the end, I’d like to say ignore the polls, but the Republicans are so good at misrepresenting the truth, that even a lie — especially a lie — can do a lot of damage. I’ve said from day one that Democrats were doing a lousy job of selling their programs. Whether it was the stimulus that quite literally saved our country, or Obamacare, that wasn’t all we wanted, but it also wasn’t too shoddy either.

Unfortunately in life, and politics, doing good isn’t enough. You have to market what you’re selling, and continue to market it even after it’s sold. The bad guys won’t stop trying to shoot it down. And you should never cease defending it.

Uninsured Rate Drops To Lowest Level Since The ’90s

OBAMACARE UNINSURED SURVEY

Obamacare is squeezing down the number of Americans who don’t have health insurance, according to yet another survey. | AP Photo/Charles Dharapak

So, does this means that berating Obamacare is off the GOP agenda this election cycle?  I doubt it…

The Huffington Post

Another day, another survey showing that Obamacare is beginning to cure America’s uninsured problem.

The latest numbers come from the federal Centers for Disease Control and Prevention, which polled more than 27,000 people during the first three months of the year. Forty-one million U.S. residents, or 13.1 percent, were uninsured during the quarter when benefits started to kick in for people who signed up for coverage into private insurance or Medicaid via the Obamacare exchanges or elsewhere.

That’s the lowest number and percentage of uninsured people since the CDC started using this version of its survey in 1997. It’s also down 3.8 million people and 1.3 percentage points from the end of 2013.

The Affordable Care Act’s impact on the uninsured actually is understated by the CDC survey. More than 30 percent of Obamacare’s 8 million private health insurance enrollees signed up in March or later. That means their benefits wouldn’t have kicked in by the end of the third quarter, so a portion of them wouldn’t have had coverage by the time of the CDC poll.

Polling and research by other organizations indicates a greater reduction of the uninsured after March. By the end of June, the uninsured rate fell to 13.3 percent, the lowest since 2008, according to Gallup survey findings released last month. Gallup’s number for the second quarter was down down from 17.1% at the end of 2013. In an article published in the New England Journal of Medicine, the Department of Health and Human Services and the Harvard School of Public Health pegged the number of people who gained coverage since last year at 10 million. The Congressional Budget Office projects 12 million people will gain health insurance by year’s end.

While the CDC survey shows the uninsured rate for children and adults over 65 years old didn’t change much, the share of working-age adults who had no health coverage fell from 20.4 percent at the end of the last year to 18.4 percent during the first three months of 2014. The biggest drop was among adults 19-25 years old; the uninsured rate for this group fell more than 5 points to 20.9 percent.

As other studies have shown, states that adopted Obamacare’s expansion of Medicaid benefits to more poor residents covered a lot more uninsured than those that didn’t. During the first quarter of this year, the uninsured rates in Medicaid-expansion states fell from 18.4 percent to 15.7. In states that refused to accept the Medicaid expansion, the uninsured rate was virtually unchanged, the CDC found. Twenty-three states, mostly in the South, have not opened up Medicaid to more people.

The CDC report also makes plain the connection between income and health insurance. The uninsured rate for poor U.S. residents was 24.1 percent, compared to 26.2 percent for “near-poor” people and 9 percent for everyone else. Obamacare provides financial assistance to people who earn up to four times the federal poverty level, which is about $94,000 for a family of four.

The ethnic group with the highest uninsured rate was Hispanics, at 27.2 percent in the first three months of this year, a decline of more than three points since 2013. The uninsured rate also fell for African-Americans, from 18.9 percent to 15.1 percent. Asians had the third-highest rate at 13.3 percent, followed by whites at 11.5 percent; the share of uninsured Asians and whites didn’t significantly change.

The Census Bureau also released survey findings about health insurance in the United States Tuesday, but its figures are from 2013, before benefits from Obamacare enrollment began to take effect. The Census also changed the way it conducts this survey, making comparisons to previous years impractical.

In 2013, 13.4 percent of the population, or 42 million people, lacked health insurancefor the entire year, the bureau found. By contrast, the CDC survey asks respondents whether they have coverage at the time of the interview, meaning they may have had coverage at another point during the same year.

The next phase of sign-ups on the health insurance exchanges begins Nov. 15 and will run through Feb. 15. According to the Congressional Budget Office, 7 million additional people who currently lack coverage will gain it during the open enrollment period, and more are expected to sign up in the coming years.

But neither the Congressional Budget Office nor anyone else believes Obamacare will ever bring the number of uninsured Americans down to zero. A decade from now, CBO projects 31 million people will not have health insurance, 25 million fewer than if the Affordable Care Act hadn’t been enacted, but still 11 percent of the population.

This story has been updated with figures from the Census Bureau survey.

GOP Attacks On Obamacare Fizzle In Key Senate Races

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AP Photo / Evan Vucci

TPM LiveWire

Since the law’s botched rollout last fall, Republicans have been licking their chops over the prospect of riding Obamacare failures to victory in the 2014 elections. But now that the law has recovered and is providing insurance coverage to millions of Americans, issue ads involving the health care law are slowly disappearing in key states like North Carolina, Louisiana and Arkansas.

In North Carolina, Obamacare was mentioned in 54 percent of issue ads in April; it fell to 27 percent in July, per data from Kantar Media’s Campaign Media Analysis Group.

In Louisiana, Obamacare fell to 41 percent of top five issue ads in July; in Arkansas it dropped to 23 percent, according to CMAG. The issue dominated the airwaves in both states in April.

Democrats in these Republican-leaning states — Sens. Kay Hagan (NC), Mary Landrieu (LA) and Mark Pryor (AR) all of whom voted for Obamacare — are considered among the most vulnerable this fall. That remains the case whether or not the law is an effective weapon for Republicans. But even as Democratic senators refrain from touting it, due to its unpopularity with conservative voters, Republican strategists are realizing that the issue won’t carry them to victory in the midterm elections.

GOP’s George Costanza moment: The “Moops” doctrine and the war on Obamacare

GOP's George Costanza moment: The "Moops" doctrine and the war on Obamacare

John Boehner, Jason Alexander as George Costanza on “Seinfeld” (Credit: Reuters/Jonathan Ernst/NBC)

Salon

Republicans gloat over an Obamacare court case that poached its legal reasoning from “Seinfeld.” No joke…

The DC Circuit Court’s decision in Halbig v. Burwell came down yesterday, and in an anticipated but no less galling turn of events, a pair of Republican-appointed judges ruled that a single poorly worded snippet of the Affordable Care Act invalidates subsidies for people who purchased health coverage through the federal exchanges. Those exchanges were set up for the 36 states that declined to build their own exchanges, so the practical effect of the ruling would be to make health insurance more expensive for roughly 4.6 million people spread out across some of the country’s poorest states.

Supporters of the Affordable Care Act point out that, the sloppily written language notwithstanding, the full text of the law clearly indicates that its drafters intended for the government to subsidize health plans purchased through the federal exchanges. These two judges, however, argued that a narrow reading of one out-of-context sliver of the bill trumps all, and ruled in favor of eviscerating the ACA and causing massive chaos in the insurance market. It’s the sort of thing that conservatives used to denounce as “judicial activism.” (A separate rulingyesterday from the Fourth Circuit Court of Appeals upheld the legality of the subsidies.)

I’ve been trying to figure out how to best characterize and/or mock the legal reasoning at play behind the Halbig decision, and I think it can be boiled down to one word: Moops.

I’m referring, of course, to George Costanza’s famous game of Trivial Pursuit against the Bubble Boy, in which Costanza tries to cheat his way out of losing by taking advantage of a misprint on the answer card: “Moops” instead of “Moors.”

“That’s not ‘Moops,’ you jerk. It’s Moors. It’s a misprint,” the Bubble Boy explains, accurately presenting the game manufacturer’s intent in spite of the minor technical error.

“I’m sorry, the card says ‘Moops’,  Costanza replies, adopting an absurdly narrow and nonsensical interpretation of the rules that furthers his own interests. It’s a pretty good match on the logic, and the happy coincidence that the situation pits a whiny, lying jerk against a person in need of substantial medical care only bolsters its relevance.

And that gets to the larger point: conservatives and Republicans are celebrating the fact that two judges indulged in some tortured legal logic in order to deny millions of people the subsidies that make their health plans affordable. The plaintiffs’ case in Halbig is a transparent attempt to sabotage the Affordable Care Act, and the people cheering on that sabotage are signaling that they’re fine with a whole lot of collateral damage just so long as Obamacare takes a hit too.

That’s a morally dubious position to maintain. It’s also a tough sell politically. For a Republican politician in a red state, refusing to set up a state-based exchange was an easy choice to make – you could be on the right side of argument politically, and the feds would step in to make sure that no one in the state would miss out on the benefits. But if the subsidies were to disappear, those same politicians would suddenly find themselves in the position of having to actually do something to mitigate the damage. Brian Beutler writes at the New Republic:

If you’re a Republican senator from a purple Healthcare.gov state—Wisconsin, Pennsylvania, Nevada, North Carolina, Florida, Ohio, and others—you’ll be under tremendous pressure to pass the legislative fix. If you’re a Republican governor in any Healthcare.gov state, many thousands of your constituents will expect you to both pressure Congress to fix the problem, and prepare to launch your own exchange.

But because the ruling dealt with Obamacare, and because Republicans are ideologically bound to be in opposition to the law, there was no shortage of GOP legislators putting out statements supporting the Halbig ruling and, in effect, higher health costs and reduced access to health care. Some of them, like Ted Cruz, just put it right out there and said hooray for the end of “insidious” healthcare tax credits: “This decision restores power to Congress and to the people and if properly enforced, should shield citizens from Obamacare’s insidious penalties, mandates, and subsidies.”

Speaker John Boehner put out a statement that didn’t make any actual sense. “Today’s ruling is also further proof that President Obama’s health care law is completely unworkable.  It cannot be fixed,” Boehner said, referring to a law that could be easily fixed by a small legislative tweak and is actually doing a pretty good job of providing health insurance subsidies. “Republicans remain committed to repealing the law and replacing it with solutions that will lower health care costs and protect American jobs,” Boehner continued, gliding right past the fact that the Republican Obamacare replacement “solutions” don’t actually exist.

The bottom line is that there are millions of people are newly and affordably insured courtesy of the Affordable Care Act’s tax credits, and they are generally happy with your coverage. And Republicans are celebrating that they could lose it all because two judges ruled that the card does, in fact, say “Moops.”

BREAKING: Two Republican Judges Order Obamacare Defunded

Ted Cruz |CREDIT: AP PHOTO/ALEX BRANDON

Did the Tea Party finally find two lower court judges to sign these orders?  Do they know that millions of people could lose Obamacare.  Do they even care?  The good news about this is that the appeals court is unlikely to uphold their decision…

Think Progress

Near the end of 2013, Sen. Ted Cruz (R-TX) led a final crusade to defund the Affordable Care Act, eventually announcing on the Senate floor that “I intend to speak in opposition to Obamacare, I intend to speak in support of defunding Obamacare, until I am no longer able to stand.” Cruz did succeed in goading his fellow Republicans into shutting down the federal government, but his effort was ultimately doomed. The American people’s elected representatives voted not to defund Obamacare, and the shutdown ended.

On Tuesday, two Republican judges voted to rewrite this history. Under Halbig v. Burwell, a decision handed down by Judge Raymond Randolph, a Bush I appointee, and Judge Thomas Griffith, a Bush II appointee, millions of Americans will lose the federal health insurance subsidies provided to them under the Affordable Care Act — or, at least, they will lose these subsidies if Randolph and Griffith’s decision is ultimately upheld on appeal.

Ted Cruz is undoubtedly smiling today. Two unelected Republicans just voted to erase his most embarrassing and most public defeat, and they voted to take away millions of Americans health care in the process.

Meet The Republicans

It’s important to understand just who these two Republicans are. Judge Randolph is a staunchly conservative judge who spent much of the oral argument in this case acting as an advocate for the anti-Obamacare side. Randolph complained, just a few weeks before President Obama would announce that the Affordable Care Act had overshot its enrollment goal, that the launch of the Affordable Care Act was “an unmitigated disaster” and that its costs “have gone sky-high.” At one point, Randolph also cut off Judge Harry Edwards, the sole Democratic appointee on the panel, to cite an editorial published by the conservativeInvestor’s Business Daily to prove the argument that Obamacare should be defunded.

The Investor’s Business Daily is not known as a particularly reliable source on health policy. In 2009, for example, it published an editorial arguing that Stephen Hawking, the British physicist who is an Englishman from the United Kingdom, “wouldn’t have a chance in the U.K., where the National Health Service would say the life of this brilliant man, because of his physical handicaps, is essentially worthless.”

Judge Griffith has a reputation as a more moderate judge, but it is not clear that this reputation is deserved. In 2012, Griffith’s colleague, Judge Janice Rogers Brown, published a concurring opinion suggesting that all labor, business or Wall Street regulation is constitutionally suspect. “America’s cowboy capitalism,” Brown claimed, “was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.” Later in her opinion, Brown suggested that the Court went off the rails when it “decided economic liberty was not a fundamental constitutional right.” In the early Twentieth Century, conservative justices relied on ideas of “economic liberty” that were discarded in the 1930s in order to strike down laws protecting workers’ right to organize, laws ensuring a minimum wage and laws prohibiting employers from overworking their employees.

Griffith did not join Brown’s opinion, but his explanation for why he did not do so is instructive — “[a]lthough by no means unsympathetic to [Brown’s] criticism nor critical of [her] choice to express [her] perspective, I am reluctant to set forth my own views on the wisdom of such a broad area of the Supreme Court’s settled jurisprudence that was not challenged by the petitioner.” So Griffith is “sympathetic” to Brown’s argument that much of the Twentieth Century is unconstitutional, but he did not want to join her opinion because the arguments she made were not raised by the parties in that case. Halbig, by contrast, presented Griffith with a much more direct attack on supposedly “burdensome regulation” brought by the forces of “cowboy capitalism.”

Punishing Millions For A Proofreading Error

The two Republicans’ decision rests on a glorified typo in the Affordable Care Act itself. Obamacare gives states a choice. They can either run their own health insurance exchange where their residents may buy health insurance, and receive subsidies to help them pay for that insurance if they qualify, or they can allow the federal government to run that exchange for them. Yet the plaintiffs’ in this case uncovered a drafting error in the statute where it appears to limit the subsidies to individuals who obtain insurance through “an Exchange established by the State.” Randolph and Griffith’s opinion concludes that this drafting error is the only thing that matters. In their words, “a federal Exchange is not an ‘Exchange established by the State,’” and that’s it. The upshot of this opinion is that 6.5 million Americans will lose their ability to afford health insurance, according to one estimate.

The Supreme Court of the United States, however, has long recognized that a law’s clear purpose should not be defeated due to an error in proofreading. As the Court explained in 2007, “a reviewing court should not confine itself to examining a particular statutory provision in isolation” as the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.” It is indeed true that a single phrase of the Affordable Care Act, if read in isolation, suggests that Congress intended only state-run exchanges — as opposed to federal exchanges — to offer subsidies, but this provision is contradicted by numerous other provisions of the law.

One provision of the Affordable Care Act, for example, indicates that any “exchange” shall be an “entity that is established by a State” — language which indicates that federally run exchanges will be deemed to be “established by a state.” This may seem counter-intuitive, but Congress has the power to define the words that it uses in any way that it wants, even if those words are defined in ways that are unusual. Another provision of the law provides that, when a state elects not to run an exchange, the Secretary of Health and Human Services “shall . . . establish and operate such Exchange within the State and the Secretary shall take such actions as are necessary to implement such other requirements.” Thus, the law not only authorizes the Secretary to stand in the state’s shoes when it runs an exchange, it also empowers her to implement the law’s “other requirements.”

Nor is this is the full extent of the problems with Randolph and Griffith’s conclusion. Indeed, in order to accept their decision, a person reading the Affordable Care Act must ignore the following facts:

  • The subtitle of the Affordable Care Act which contains the provisions at issue in this case is titled “Affordable Coverage Choices for All Americans.” If Randolph and Griffith are correct, Congress would have named that subtitle “Affordable Coverage Choices for All Americans Except For Those Americans Who Live In States With Federally-Run Exchanges.”
  • The Affordable Care Act says that it will “achieve[] near-universal coverage.” If Randolph and Griffith are correct, Congress would have said that Obamacare “achieves near-universal coverage except in states with federally-run exchanges.”
  • An amendment to the Affordable Care Act requires the federally-run exchanges to report various information that they would only be able to report if they were providing subsidies, such as whether taxpayers received an “advance payment of such credit”; information needed to determine individuals’ “eligibility for, and the amount of, such credit”; and “[i]nformation necessary to determine whether a taxpayer has received excess advance payments.” Congress would not have imposed this reporting requirements if they thought that the federal exchanges would not offer subsidies.
  • The Affordable Care Act also provides that the only people who are qualified to purchase insurance at all on a federally-run exchange are people who “reside[] in the State that established the Exchange.” Thus, if federally-run exchanges are not deemed to be “established by the State,” that means that no one at all is allowed to purchase health insurance on the federally-run exchanges, and there would be no purpose whatsoever to their existence. As the trial court explained in this very case, this interpretation makes no sense, because “courts presume that Congress has used its scarce legislative time to enact statutes that have some legal consequence.”

Shifting Positions

Virtually no one, apparently including at least one of the plaintiffs who brought this lawsuit, actually believes that these propositions are true. Indeed, as the government points out in its brief, one of the plaintiffs who brought this lawsuit also was a plaintiff in the last lawsuit seeking to gut Obamacare, the challenge to the individual mandate that was rejected by the Supreme Court. In that lawsuit, this plaintiff argued that the subsidies were an integral part of every exchange’s’ very design — “[w]ithout the subsidies driving demand within the exchanges, insurance companies would have absolutely no reason to offer their products through exchanges, where they are subject to far greater restrictions.” Now, however, he expects the courts to believe that these subsidies were entirely optional, and that Congress intended federally-run exchanges to get along without them. Notably, the exact same lawyer represented this plaintiff when he made both of these mutually exclusive claims.

The unsuccessful legal argument claiming that the individual mandate was unconstitutional was a major prong of the Republican attack on the law as early as 2009. Yet, even after the GOP decided that defeating Obamacare in court was their number one policy priority, afterRepublican officials in numerous states brought a high-profile lawsuit seeking to kill this law, and after they hired one of the best lawyers in the country to drive this litigation, no one noticed the alleged flaw in the statute that Randolph and Griffith rely upon today. The reason why is obvious. Not even the many Republican officials who filed briefs seeking to kill this law the first time around actually believed that the law was intended to deny subsidies to people who buy insurance in federal exchanges.

To get around this fact, Randolph and Griffith spin an alternative history of the Affordable Care Act’s passage. A major prong of this alternative history claims that Congress wanted to deny subsidies to people in states with federally-run exchanges because that that would provide states with an incentive to start their own exchange — in Randolph and Griffith’s words, Congress “us[ed] subsidies as an incentive to gain states’ cooperation.” Thus, in this narrative, Congress viewed getting states to run exchanges as an all-encompassing goal, trumping even the law’s stated goals of providing “Affordable Coverage Choices for AllAmericans” and achieving “near-universal coverage.” Needless to say, there is absolutely no evidence whatsoever that Congress actually viewed the administrative question of which set of government bureaucrats would run a particular state’s exchange as a question of such superseding importance that they were willing to deny health coverage to millions of people in order to ensure that the right set of bureaucrats run the exchanges in each state.

An Opinion That Kills

Should Randolph and Griffith’s decision be upheld on appeal, which, for reasons explained below, is unlikely, it would send destructive shockwaves through much of the American health care system. As ThinkProgress previously explained, suddenly removing federal subsidies from insurance markets that expect them to continue being paid would force health insurers to jack up their premiums in order to cover their costs. Higher premiums, however, would cause many healthy individuals to drop their coverage. Which will force insurers to raise their premiums even more, which will cause even more individuals to lose their coverage. Indeed, according to a brief filed by several economists, the resulting death spiral would render insurance “unaffordable for more than 99 percent of the families and individuals eligible for subsidies” within the federal exchanges.

This economic problem exposes yet another flaw in Randolph and Griffith’s opinion. In order to accept their reasoning, one has to believe that Congress buried a hidden time bomb within the arcane provisions of the Affordable Care Act that, when it detonated, would render much of the act a nullity. As the economists explain in their brief, Randolph and Griffith’s decision presumes that “Congress sought to legislate into existence a massive new social program that it understood would immediately fail.”

So Randolph and Griffith’s opinion would be comic if its result were not so tragic. And make no mistake, if this opinion is upheld on appeal, it will be a tragedy. According to one Harvard study, nearly 45,000 Americans between the ages of 18 and 64 died in a single year because they lacked health insurance. Randolph and Griffith’s decision would ensure that many of these deaths resume. That’s tens of thousands of wives who will never hold their husbands again, and tens of thousands of fathers who will never kiss their daughters again, all because two unelected Republicans hunted through an ocean of language indicating that Congress intended to end these needless deaths in order to find a single piece of flotsam suggesting that the law should be defunded.

This is not how judges typically behave in a democracy. And it is not a decision that is rooted either in Congress’ intentions or in Supreme Court precedent.

An Opinion That Is Unlikely To Survive

We live in interesting times. And we live in times where judges and justices can not longer be expected to rely on established law, especially when they are presented to an opportunity toundermine Obamacare. Nevertheless, there are several reasons to be optimistic that Randolph and Griffith attempt to defund Obamacare will not survive contact with a higher authority.

For starters, under the Supreme Court’s Chevron Doctrine, courts typically defer to a federal agency’s reading of a law so long as “the agency’s answer is based on a permissible construction of the statute.” Randolph and Griffith get around this doctrine by claiming that the law “the ACA unambiguously restricts the section 36B subsidy to insurance” purchased on state-run exchanges.

If you truly believe that the only possible interpretation of the Affordable Care Act’s language is the one adopted by Randolph and Griffith on Tuesday, then you may want to go back to the top of this article and start reading it all over again. In any event, two federal judges previously concluded that Obamacare is unambiguous in the other direction — that is, it unambiguously offers subsidies to people who purchase insurance through federal exchanges. That alone demonstrates that, even if the law isn’t completely clear, its meaning is at least uncertain enough that the courts should defer to the agency’s reading underChevron.

More importantly, Randolph and Griffith’s own colleagues are unlikely to allow this opinion to stand for long. The federal government may now appeal this decision to the full United States Court of Appeals for the District of Columbia Circuit, where Democrats enjoy a 7-4 majority among the court’s active judges. It is unlikely, to say the least, that a Democratic bench will strike down President Obama’s primary legislative accomplishment based on the highly doubtful reasoning contained in Randolph and Griffith’s opinion.

Should the full DC Circuit intervene, of course, their decision can ultimately be appealed to the GOP-controlled Supreme Court. But we’ve already seen this story play out once before. The last time conservative lawyers brought a case to the Supreme Court seeking to gut Obamacare, Chief Justice John Roberts voted to uphold the bulk of the law.

Roberts cast this vote a year-and-a-half before much of the law would actually be implemented, meaning that, if he had chosen to struck down the law then, he would have been able to do so at a time when the constituency for upholding the law was relatively small. Now, however, millions of Americans stand to lose their health insurance if Roberts signs on to Randolph and Griffith’s reasoning — and Roberts would be personally responsible for the subsequent loss of health coverage and needless deaths that would result. If Roberts was unwilling to trash the law at a time when the impact would have been relatively small, it is unlikely that he will do so under circumstances that are likely to inspire the masses to storm his castle while wielding pitchforks.