Supreme Court

Morning Plum: Republicans won’t have any contingency plan if Court guts subsidies for millions

The Washington Post – Plum Line

With the Supreme Court set to hear oral arguments this week in the lawsuit that could do severe damage to the Affordable Care Act, some Republican lawmakers are working hard to convey the impression that they have a contingency plan for the millions who will likely lose subsidies — and coverage — if the Court rules with the challengers. Senators Orrin Hatch, Lamar Alexander, and John Barrasso have published a Washington Post op ed with an oh-so-reassuring title: “We have a plan for fixing health care.”

The good Senators, amusingly, cast their “plan” as something that will protect people from “the administration’s” actions and from Obamacare itself, not from the consequences of the legal challenge or a Court decision siding with it. The plan vows to “provide financial assistance” for a “transitional period” to those who lose subsidies, while Republicans create a “bridge away from Obamacare.” Of course, anyone who watched last week’s chaos in the House knows Congressional Republicans are unlikely to coalesce around any “transitional” relief for those who lose subsidies (that would require spending federal money to cover people) or any permanent long-term alternative. This chatter appears transparently designed to make it easier for conservative Justices to side with the challengers.

Yet even if this game works on the Justices in the short term, any eventual failure to come through with any  contingency plan could saddle Republicans with a political problem, perhaps even among GOP voters.

A poll taken by Independent Women’s Voice — a group that favors repealing Obamacare in the name of individual liberty — found that in the nearly three dozen states on the federal exchange, 75 percent of respondents think it’s very (54) or somewhat (21) important to restore subsidies to those who lose them. In the dozen main presidential swing states, 75 percent of respondents say the same.

And guess what: Large majorities of Republican voters agree. A spokesperson for the group tells me that in both those groups of states taken together, 62 percent of Republican respondents say its very (31) or somewhat (31) important to restore the subsidies. Only 31 percent of Republicans in those states think doing this is unimportant.

This raises the possibility that a lot of Republican voters would be harmed by an anti-ACA decision, too. As Politico puts it today: “The people who would be affected by a Supreme Court decision against the Obama administration live disproportionately in GOP-governed states, and an Urban Institute study found that many people fall into a demographic crucial to the GOP base — white, Southern and employed.”

Now, none of this means Republicans will be more likely to step forward with a solution. As Avik Roy (who hopes the Court rules against the ACA) acknowledges, Republicans are so divided that uniting on any response is unlikely:

Republicans are being pulled in two directions. On the one hand, you have dozens of House members from highly ideological districts, for whom a primary challenge is a far bigger political risk than a general election. Many members of this group think that continuing Obamacare’s subsidies, in any form, is problematic.

On the other hand, there is a large group of Republican senators in blue and purple states up for reelection in 2016. These include Mark Kirk (Ill.), Ron Johnson (Wisc.), Pat Toomey (Penn.), Kelly Ayotte (N.H.), Richard Burr (N.C.), Marco Rubio (Fla.), and Rob Portman (Ohio). These senators are much more aligned with Hatch, Alexander, and Barrasso.

Meanwhile, Republican state lawmakers, who could keep the subsidies flowing to their constituents by setting up state exchanges, are all over the place on what might come next, with some already ruling out such a fix. Indeed, in the end, it probably won’t matter that large majorities of Americans — or even large majorities of Republicans — support restoring the subsidies. On this, as on so many other things, GOP lawmakers will probably take their cues from the more conservative minority of Republicans, whatever the political or policy consequences.


* WHY JUSTICES SHOULD WEIGH CONSEQUENCES OF ANTI-ACA RULING: Law professor Nicholas Bagley has a terrific piece explaining why the Supreme Court Justices should factor in the fact that siding with the challengers would take health care from millions: This eventuality shows the challengers are misreading the law.

It’s not irrelevant that a ruling in their favor would inflict such damage. To the contrary, that fact helps us correctly interpret the statute’s text. Indeed, it shows that the plaintiffs’ understanding of that text is wrong. As the Supreme Court has said time and again, no provision of a statute should be read in isolation. Laws must be read as a whole, with an eye to harmonizing their interdependent parts. That means the court is reluctant to read a stray passage here or there in a way that would destabilize an entire statutory scheme.

It’s also possible that the real-world implications of an anti-ACA ruling might have legal relevance because they bolster the states’ argument that siding with the challengers would impose unfair retroactive consequences on them without clear warning. Read the whole thing.

* LEGAL CHALLENGE TO THE ACA IS ‘PROVABLE FICTION’:Steven Brill has a must-read in which he documents his close reporting on the creation of the Affordable Care Act, and why that led him to the conclusion that the idea that Congress intended to deny subsidies to those on the federal exchange is nothing but “fiction” and a “fairytale”:

Congressional intent is a fact-based inquiry, not a matter of opinion. Given the unambiguous mountain of facts arrayed for the defense (and well-presented in the briefs submitted by the defense side), it is hard enough to see how the lawyers on the plaintiffs’ side could actually believe in their case…if a majority of supposedly objective justices decide to ignore the facts and buy their argument, they will have engaged in a breathtaking act of political activism.

The Justices, however, could simply conclude that the disputed phrase is not ambiguous enough to warrant Chevron deference to the IRS’ interpretation of the law, despite all the evidence of Congressional intent, not to mention the law’s overall structure and purpose.

* DEMOCRATS ANGRY ABOUT NETANYAHU SPEECH: Benjamin Netanyahu is set to address Congress tomorrow, and the New York Times reports that anger and unease are widespread among Congressional Democrats. The latest tally on who will skip the speech:

So far, 30 Democrats — four senators and 26 representatives — have said they will not attend the speech. Nearly half are African-Americans, who say they feel deeply that Mr. Netanyahu is disrespecting the president by challenging his foreign policy. But a half-dozen of those Democrats planning to stay away are Jewish, and represent 21 percent of Congress’s Jewish members.

Given the historic skittishness among Democrats about appearing even slightly out of sync with what Israel wants, that actually represents something new.

* PARTISAN DIVIDE ON VIEWS OF NETANYAHU: A new NBC News poll finds that  66 percent of Democrats say GOP leaders shouldn’t have invited Netanyahu to speak without notifying the president first, while only 28 percent of Republicans say the same. And only 12 percent of Democrats view Netanyahu favorably, versus 49 percent of Republicans. It bears repeating that when it comes to Israel and diplomacy with Iran, Congressional Democrats are well to the right of their base.

* SCOTT WALKER FLIP-FLOPS ON IMMIGRATION: After previously supporting legalization for the 11 million, Scott Walker tried to get right with conservatives on Fox News Sunday:

“I don’t believe in amnesty…my view has changed. I’m flat out saying it…we need to secure the border. We ultimately need to put in place a system that works. A legal immigration system that works.”

However, Walker also said that “there’s a way” to legalize the 11 million if border security is accomplished first. This puts Walker pretty much where Jeb Bush and Marco Rubio have come down on the issue.

* TOP CONSERVATIVE: BOEHNER’S JOB IS SAFE: GOP Rep. Jim Jordan, the chairman of the Freedom Caucus, flatly tells CNN that there won’t be any conservative coup to oust Speaker John Boehner: “That’s not gonna happen.”

Duly noted. So what is stopping Boehner from passing long term funding of the Department of Homeland Security with the help of a lot of Democrats? We were repeatedly told during past showdowns that Boehner couldn’t avert crises with Dem help, because he’d lose his Speakership, and each of those ended in the same way.

10 things you need to know today: February 20, 2015

The Week

1.Pentagon lays out plans, dates to retake Mosul from ISIS
In a briefing on Thursday, a U.S. Central Command official detailed how and when up to 25,000 Iraqi troops plan to retake Mosul, Iraq’s second-largest city, from Islamic State control, starting in April or May. Twelve brigades will be involved, the official said: five that will lead the attack, three acting as backup, three Kurdish peshmerga brigades to keep ISIS boxed in, and a force of former Mosul police and other leaders tasked with keeping control of the city once ISIS is pushed out. It is unusual for military officials to detail plans for an attack beforehand.

Source: The Associated Press

2.Record cold hits the East
A blast of Arctic air brought East Coast temperatures to record lows on Thursday, with still colder weather expected in some areas on Friday. In parts of the upper Midwest, Thursday temperatures plunged to minus 35 early Thursday. Sub-zero temperatures hit a broad area stretching from North Dakota south to Kentucky and east to New York. Chicago hit a record low for Feb. 19 at eight degrees below zero. All-time February lows are forecast from Ohio to Virginia early Friday.

Source: The Washington Post

3.Walmart promises to lift wages for 500,000 employees
Walmart pledged Thursday to raise the wages of a half million U.S. employees, boosting them to at least $9 an hour this year, and to $10 an hour by next February. Economists said the move by the giant retailer could signal that wage growth is finally picking up six years into the recovery from the Great Recession. The raises will affect about 500,000 of the company’s 1.4 million U.S. workers at Walmart and Sam’s Club stores.

Source: The Wall Street Journal

4.Caracas mayor arrested, accused of planning a coup
Venezuelan intelligence police on Thursday arrested Caracas Mayor Antonio Ledezma, an outspoken critic of President Nicolas Maduro and his handling of the economy. In a televised statement, Maduro said Ledezma was detained on the public prosecutor’s orders for instigating a coup. “Enough already of vampires conspiring against the peace,” he said. Maduro also claimed the U.S. was attempting to destabilize his government, allegations the U.S. State Department called “baseless and false.”

Source: Bloomberg

5.Germany turns down Greece’s initial bailout extension terms
Germany rejected Greece’s proposal to extend its European bailout package for six months, saying Thursday that the new Greek government’s proposal was “not a substantial solution” because it did not stick to the austerity measures required under the original loan terms. Some analysts interpreted the rejection as a sign that Greece and its new anti-austerity government were destined to exit the eurozone. A senior Greek official said, however, that the two sides were near a deal heading into a Friday meeting.

Source: Reuters

6.Texas high court halts gay marriages
The Texas Supreme Court on Thursday halted gay marriages after a lesbian couple became the first same-sex partners to wed in the state. The Texas high court stayed two court rulings calling the state’s gay marriage ban unconstitutional. Texas Attorney General Ken Paxton declared the marriage of the couple — Sarah Goodfriend and Suzanne Bryant — to be “void” after the Supreme Court decision. A county clerk in Austin had issued Goodfriend and Bryant a license because one had “severe and immediate health concerns.”

Source: NBC News

7.Bill O’Reilly accused of having his own “Brian Williams problem”
Mother Jones published an article Thursday accusing Fox News star Bill O’Reilly of claiming he was in the Falkland Islands during Argentina’s 1982 war with Britain, even though no U.S. reporters are believed to have made it to the islands. O’Reilly, who worked for CBS at the time, called the magazine’s assertion that he had a “Brian Williams problem” “a piece of garbage,” saying he never said he was in the islands. “I was in Buenos Aires,” O’Reilly said. “In Buenos Aires we were in a combat situation after the Argentines surrendered.”

Source: Mother Jones, Politico

8.Man arrested in connection with Las Vegas road-rage killing
Las Vegas police on Thursday arrested a 19-year-old man, Erich Nowsch, on suspicion of killing a Las Vegas woman, Tammy Meyers, after a road rage incident. Meyers was giving her 15-year-old daughter a driving lesson when the girl honked the horn at a car speeding by. The driver of the other vehicle stopped in front of the women and threatened them. Nowsch lives a block away from the Meyers’ house. Tammy Meyers’ husband said she knew Nowsch, and had given money and mentored him.

Source: CNN, The Associated Press

9. Giuliani defends controversial remarks about Obama
Former New York mayor Rudy Giuliani (R) defended Thursday remarks he made about President Obama’s patriotism at a fundraiser Wednesdaynight for Wisconsin Gov. Scott Walker (R). During the event, he said, “I do not believe that the president loves America.” Giuliani told The New York Times on Thursday that he was not being prejudiced when he made the statement. “Some people thought it was racist — I thought that was a joke, since he was brought up by a white mother, a white grandfather, went to white schools, and most of this he learned from white people,” he said. “This isn’t racism. This is socialism or possibly anti-colonialism.”

Source: The New York Times

10.Parks and Recreation exec Harris Wittels, 30, found dead
Parks and Recreation co-executive producer Harris Wittels was found dead Thursday at his Los Angeles home. He was 30. Police said they suspected a drug overdose, although the coroner’s office will have to perform an autopsy to confirm it. Amy Poehler, star of the NBC sitcom, mourned Wittels as a “dear, young friend in my life who was struggling with addiction.” Wittels also co-wrote the series and occasionally appeared as an animal control staffer. The show’s final season concludes Feb. 24.

Source: Los Angeles Times, Variety

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 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.

10 things you need to know today: February 18, 2015

The Week

1.Ukraine pulls out of key town claimed by pro-Russian rebels
Ukrainian soldiers began withdrawing from the strategically important town of Debaltseve, Ukrainian President Petro Poroshenko saidWednesday. Street-to-street fighting there had continued despite a new cease-fire. Pro-Russian separatists had declared that the rail hub linking two rebel-contolled areas is on their turf, not the front lines, and was not covered under the peace deal. Hundreds of Ukrainian troops are still believed to be trapped in the contested town.

Source: Sky News

2.White House says administration will appeal blocking of Obama immigration orders
President Obama on Tuesday said he would abide by a judge’s decision to block an executive order delaying the deportations of as many as five million undocumented immigrants. U.S. District Judge Andrew Hanen said the ruling was necessary to give 26 states time to challenge Obama’s executive action. The White House said Obama’s measures were “well within his legal authority,” and the ruling “wrongly prevents these lawful, commonsense policies from taking effect.” The administration plans to appeal.

Source: CNN

3.Miss P the beagle wins best in show at Westminster dog show
Miss P, a 15-inch beagle, won Best in Show at the 139th Westminster Kennel Club dog show Tuesday night at New York City’s Madison Square Garden. She is the second beagle to take the title of top dog, and the grandniece of the first winning beagle, Uno, 2008’s champion. “She’s hungry and I’m overwhelmed,” said handler Will Alexander of Miss P and himself. Miss P, at least, will get a nice steak at Sardi’s on Wednesday.

Source: The New York Times

4.Ray of hope in Greece boosts stocks into record territory
The Standard & Poor’s 500 stock index shook off early losses to rise into record territory, closing above 2100 for the first time. The gains were fueled by optimism over news that Greece’s new anti-austerity government would ask European creditors to extend the country’s bailout. The Dow Jones Industrial Average fell six points short of a record, closing up 0.2 percent at 18,047.58.

Source: USA Today

5.Texas probate judge calls gay-marriage ban unconstitutional
A Travis County, Texas, probate judge ruled on Tuesday that the state’s ban on same-sex marriage is unconstitutional. Judge Guy Herman, in a decision on an estate case, said the ban violates the guarantee of due process and equal protection under the law spelled out in the Fourteenth Amendment. Travis County Clerk Dana DeBeauvoir praised the ruling as “a great step toward marriage equality” but said she had not yet been ordered to make the change, so she would not yet start issuing marriage licenses to same-sex couples.

Source: Los Angeles Times

6.Florida high court halts execution pending U.S. Supreme Court ruling
Florida’s Supreme Court on Tuesday blocked the execution of Jerry William Correll, who killed four people in Orlando 30 years ago, pending a ruling by the U.S. Supreme Court on the administration of one of the drugs the state uses in its lethal injections. The high court is considering the constitutionality of Oklahoma’s use of a sedative that Florida also administers in the first step of its three-step process. Critics say the drug, Midazolam, does not work and subjects condemned inmates to pain.

Source: Orlando Sentinel

7.Haiti cancels third and final day of carnival after deadly float accident
Haiti canceled the last day of its three-day annual carnival celebration and announced three days of mourning after a power line fell on a hip-hop band’s float, resulting in at least 16 deaths and 78 injuries. Most of the casualties came as the panicked crowd tried to run away. Witnesses said a singer who goes by the name Fantom hit his head on the high-voltage line, then somebody used a pole to lift it so the float could pass underneath.

Source: Reuters

8.Woman killed after road rage incident had gone looking for other driver
The case of a Las Vegas woman killed last week in front of her home after a road-rage incident went searching for the other driver after the initial confrontation, police said Tuesday. She was accompanied by her 22-year-old son, who had a gun. Initially, investigators said the woman — Tammy Meyers, 44 — and her 15-year-old daughter had gone home and were calling for help when someone pulled up in a car and shot Meyers. She and her son had spotted the other car but decided to return home.

Source: Los Angeles Times

9. Alabama governor apologizes to India for police force against grandfather
Alabama Gov. Robert Bentley (R) has written a letter to the Indian government, apologizing for the actions of two police officers who seriously injured a man visiting from the country. “I deeply regret the unfortunate use of excessive force… and for the injuries sustained by Mr. Patel,” Bentley wrote to India’s consul general in Atlanta. On Feb. 6, two police officers threw Patel, 57, to the ground, leaving him partially paralyzed. The Indian citizen was in Alabama to care of his young grandson.

Source: Time

10.Alex Rodriguez apologizes to fans for suspension
New York Yankees slugger Alex Rodriguez on Tuesday issued a handwritten apology to fans his for yearlong suspension for violating Major League Baseball’s performance-boosting drug policy. The three-time MVP missed out on the entire 2014 season. He was the biggest name among 14 players stained by their association with the now shuttered Biogenesis anti-aging clinic. Rodriquez has maintained that he never used performance-enhancing drugs, calling the MLB investigation a “witch hunt.”

Source: The Wall Street Journal

Alabama Marriage Mess Shows Dangers of Distorted ‘Religious Liberty’ Claims

The Huffington Post

Across Alabama, local judges are openly defying a federal judicial order to grant marriage licenses to same-sex couples. The New York Times reported yesterday that 44 of the state’s 67 counties were not granting licenses. The state is a checkerboard where gay and lesbian Alabamans are locked out of full citizenship across vast swaths of the state based on the whims of local officials.

As many observers have pointed out, this week’s events make Americans recall the state’s historic resistance to federal court orders striking down segregation. But they show us an image of the future, as well — or at least the future as the far right would have it.

Emboldened by the Supreme Court’s distortion of religious liberty in the Hobby Lobby case, some state legislatures are considering bills that would allow government officials to decline to perform marriages that offend them religiously. A number of states are also considering legislation to let people exempt themselves from anti-discrimination and other laws if compliance would offend them religiously. While misleadingly framed as protecting religious liberty, these bills are really intended to allow discrimination and to let conservatives impose their religious beliefs on others.

So what would America look like if we allowed such massive holes to be poked in laws that are supposed to protect everyone? What if lesbian and gay couples were legally treated as outsiders in their home communities, had fewer legal rights than anyone else in those communities, and had to travel anywhere from another neighborhood to another county to find a bakery willing to make a cake for them, a hotel willing to rent them a room for the night, or an employer willing to grant them spousal employment benefits? What if a woman’s ability to find adequate healthcare depended on finding an employer and a pharmacist with compatible religious beliefs? What if people’s basic rights varied depending on where they were, and upon the prevailing religious beliefs of people in the area? What would such a religiously balkanized nation look like?

It would look a lot like Alabama does today. And it would be ugly.

For decades, the far right has fought tooth and nail to impose their religious beliefs through government fiat. They have fought to prevent gays from marrying, to prevent women from exercising reproductive choice, to have public schools indoctrinate other people’s children with their own religious beliefs — the list goes on. And when they fail at changing the laws to match their religion, they seek exemptions from those laws in the name of “religious liberty.”

As People For the American Way Senior Fellow Peter Montgomery has written in his most recent report, that isn’t what religious liberty is about. And it isn’t a vision of America that is true to our founding principles.

The Case Against Obamacare May Fail One Of The Most Basic Tests Of A Lawsuit

Justice Anthony Kennedy | CREDIT: AP PHOTO/MATT SLOCUM

Think Progress

King v. Burwell, a Supreme Court case seeking to defund much of the Affordable Care Act and strip health insurance from as many as 13 million people, is a project of the Competitive Enterprise Institute (CEI), a conservative organization whose former chairman compared Obamacare to the Holocaust. CEI, does not hide this fact. To the contrary, its website announces that CEI is “coordinating and funding” the King litigation.

The Constitution, however, does not permit CEI to bring a lawsuit challenging Obamacare simply because they do not like the law. Rather, in order to invoke the jurisdiction of federal courts, CEI had to track down at least one plaintiff somewhere in the country who is actually injured in some way by the provisions of the Affordable Care Act CEI wishes to attack. Recent reporting by the Wall Street Journal and Mother Jones, however, indicate that CEI may have failed at this basic task when it assembled the four plaintiffs in King.

Article III of the Constitution requires plaintiffs challenging a federal law to show that they will actually be harmed in some way if the law remains in effect, a requirement known as “standing.” King challenges tax credits that help millions of individuals who purchased health insurance through health exchanges operated by the federal government afford their coverage. To establish standing, however, the lawyers behind this case offer a somewhat convoluted theory.

Although the Affordable Care Act requires most Americans to either carry health insurance or pay somewhat higher taxes, individuals are exempt from this requirement if the cost of the lowest-price coverage available to them exceeds 8 percent of their household income. The King plaintiffs claim that the cost of such a health plan is below 8 percent of their income if they are eligible for tax credits, but it is above 8 percent of their income if the tax credits are struck down. Thus, they claim, by rendering health care unaffordable for millions of Americans, they can also save themselves from complying with the law.

It’s not at all clear that the plaintiffs’ (and their attorneys’) math is correct, however, at least if one assumes that the claims that they made regarding their own finances are correct. According to a declaration filed by a senior official in the Department of Health and Human Services, two of the four plaintiffs are exempt from the consequences of not buying health insurance regardless of whether they receive a tax credit, because the cost of the cheapest plan will exceed 8 percent of their income even if they do receive a tax credit. Additionally, while plaintiff Brenda Levy projected that she would earn as much as $43,000 in 2014, reporting by the Wall Street Journal suggests that her income may actually be “less than $10,000.” If her income is this low, she would also be exempt from the law’s consequences for people who do not buy health insurance.

That leaves one more plaintiff, Douglas Hurst.

The Wall Street Journal also reports, however, that Mr. Hurst is a veteran and may be entitled to enroll in a veterans health plan. Federal regulations provide that several veterans health programs qualify as insurance coverage under the Affordable Care Act. So if Hurst qualifies for one of these programs, he does not have standing the challenge the tax credits even if he hasn’t actually enrolled in the veterans benefits he is entitled to. A plaintiffs’ decision not to claim benefits they are entitled to is their own choice, but that does not give a plaintiff a right to “complain about damage inflicted by its own hand.”

In an email to ThinkProgress, CEI’s general counsel Sam Kazman writes that, to CEI’s knowledge at the outset of the King litigation, “neither Mr. King nor Mr. Hurst was ever enrolled in any veterans health care program,” and he claims that their failure to enroll in veterans benefits means that “under the ACA and its regulations, neither was ‘eligible’ for such coverage.” To justify this counter-intuitive definition of the word “eligible,” Kazman points to a regulation establishing a “Special rule for coverage for veterans and other individuals.”

“CEI is wrong,” however, according to law professor and health policy expert Tim Jost. Jost explains that “there are two sets of regulations that discuss veterans benefits,” and the regulations Kazman cites to do not answer the question of who has complied with their obligation to obtain health insurance under the Affordable Care Act. Rather, the regulations Kazman cites gives veterans a choice — they can either enroll in a veterans program or obtain insurance through another means such as through the health insurance exchanges. But, once again, a plaintiff cannot root his standing to bring a lawsuit in his own choices.

So what all does this mean for the future of the King case? If all four plaintiffs lack standing, the Court must dismiss the case because the Constitution does not permit federal courts to decide cases where no plaintiff has standing. Based on what we know now, however, it would be premature for the Court to definitively hold that no party has standing. It is possible, for example, that Ms. Levy’s income is higher than news reports suggest, or that Mr. Hurst does not qualify for veterans benefits. These facts could only be determined with certainty if the case is sent back to a lower court to allow additional fact-finding.

One possibility is that the Supreme Court could dismiss the case as “improvidently granted,” a process that would allow the justices to wait for another case that presents a similar issue without also presenting the same doubts regarding whether the Court has jurisdiction to decide the matter in the first place. As a practical matter, however, it probably is not in the Justice Department’s interests to urge the justices to reach such a decision. If there are five votes who are inclined to reject this attack on Obamacare, then the best outcome for the Department — and for the millions of Americans who rely the law’s tax credits to afford insurance — is to have the justices reach the merits and uphold the law. If, on the other hand, there are five votes eager to gut the law, then they are unlikely to stay their hand due to doubts about the plaintiffs’ standing.

As the New York Times‘s Linda Greenhouse recently explained, the plaintiffs’ legal arguments in King aren’t just weak on the merits, they conflict with the previously stated views of all five of the Supreme Court’s conservatives. By taking CEI’s case, according to Greenhouse, the justices allowed themselves “to be recruited into the front lines of a partisan war.” And once a justice decides to take sides in such a war, it’s not likely that they are going to be deterred because CEI was less-than-diligent in recruiting plaintiffs.

Nevertheless, CEI’s trouble recruiting plaintiffs for this lawsuit who can claim, with certainty, that they were actually injured in some way by Obamacare says a great deal about the stakes in this litigation. During oral arguments before a federal appeals court that upheld the tax credits, Judge Andre Davis described what he thought the plaintiffs in this lawsuit were after — “You are asking us to kick millions of Americans off health insurance, just to save four people a few dollars.” As it turns out, the four King plaintiffs may have even less at stake than Judge Davis thought.

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


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


President Obama | White House Photo


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:


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.

9 Travesties Of Justice In 2014 That Would Be Totally Unbelievable If They Weren’t True


Scales Of Justice | Shutterstock

Think Progress

Every year, stories emerge that serve as a reminder that the American system of justice means injustice for too many, with some receiving little or no punishment for egregious offenses, while others receive harsh or faulty punishment for much less, or even by way of partisan civil court decisions. Here are some of the worst injustices of 2014:

1. An NYPD officer killed a man on video, and he won’t face charges.

The nation watched in disbelief as even a police killing caught on videotape didn’t result in any charges, even as as unarmed victim Eric Garner repeatedly yelled “I can’t breathe” as Officer David Pantaleo continued an illegal chokehold. The same went for the grand jury in Ferguson after the unarmed Michael Brown was shot in broad daylight. And in Saratoga Springs, Utah; Beavercreek, Ohio; and Saginaw, Michigan. These incidents were a public testament to the reality that, with a few prominent exceptions, police are rarely held accountable for deadly force or other violence that could be perceived as police brutality. Racial bias, conflicted prosecutors, and legal parameters all play a role in this outcome, as does the prevalence of racially disparate and violent police treatment. It is the failure to indict, however, that represents perhaps the greatest indictment of the justice system in 2014.

2. Two judges ordered millions of Americans to lose their health insurance.

In July, two Republican members of a federal appeals court in Washington, DC voted todefund much of the Affordable Care Act by cutting off tax credits that enable millions of Americans to afford health insurance. Their opinion relies on seven words in the Obamacare statute — “through an Exchange established by the State” — which, if read out of context, suggest that the tax credits are not available in up to three dozen states where health exchanges are run by the federal government. Other provisions of the law, however, make clear that any exchange, regardless of who runs it, shall provide tax credits. The Supreme Court is now preparing to hear a similar case that presents the same issue. Should the justices ultimately agree to defund Obamacare, millions of Americans will lose their health insurance and thousands are likely to die based on the Supreme Court’s unwillingness to read the entire Affordable Care Act and not just seven selectively-chosen words.

3. An Oklahoma death row inmate gasped for 43 minutes as state executioners stood by.

Clayton Lockett writhed in pain for 43 minutes as observers watched a botched execution in real-time. Joseph Rudolph Wood was still gasping an hour after a lethal injection was supposed to kill him. After two hours, he died. There are still no legal conclusions about fault in either incident. But the imposition of punishments many would consider cruel and unusual even for a death sentence come as many states are turning to increasingly controversial methods to get around opposition to the death penalty, both around the world and in the medical community.

Oklahoma used lethal injection drugs manufactured in secret, at small-batch “compounding pharmacies” that are not, like most pharmacies, regulated by the Food and Drug Administration. Several states are turning to these compounding pharmaciesbecause of a shortage of lethal injection drugs from European drug-makers, thanks to international opposition to the death penalty. Over the past few years, inmates who were executed using small-batch barbituates from compounding pharmacies reportedly experienced prolonged, gasping periods before they finally died. An autopsy of Clayton Lockett found that perhaps the biggest error that night was a faulty injection, likely fueled by the prohibition by many major medical associations on participating in executions.

4. Inmates were ‘baked to death,’ gassed to death, and scalded to death in American jails and prisons.

Marine veteran Jerome Murdough had been dead for four hours when jail guardsdiscovered him in his cell, dehydrated and overheated, in a solitary mental observation unit that was supposed to be monitored every 15 minutes. An anonymous official said Murdough, who was being held after he couldn’t afford bail over a trespassing arrest, “baked to death.” Darren Rainey was scalded to death in a 160-degree shower imposed on him as a punishment in his Miami-Dade county jail cell. Randall Jordan-Aparo was found “coated in yellow residue, his face was pressed up against the bottom of the steel door and a Bible was next to his head,” as the Miami Herald described it, after having been sprayed with gas by guards and left to suffocate without medical intervention in a Florida prison.

These are just some of the worst of the deaths and mistreatment at law enforcement hands in 2014. Each of these individuals suffered from mental illness, in a system of rampant incarceration that is increasingly serving as a de facto asylum for many. The Florida cases are still under investigation, while the guard in the Rikers Island case wasarrested just this month, was released on bail, unlike Murdough. This week, federal authorities filed a lawsuit against Rikers Island for over its violent and intimidating treatment of teens in the jail, where the majority of inmates have been charged but not yet even convicted of a crime. A federal bill awaiting President Obama’s signature would require states to report not just deaths at law enforcement hands, but also those in jails and prisons.

5. Two mentally disabled North Carolina men spent 30 years in prison before DNA evidence exonerated them.

Henry Lee McCollum and Leon Brown had spent most of their adult lives in prison, McCullom on death row. They long ago repudiated confessions they said were coerced. At the age of 19, McCollum was pushed to confess during a five-hour interrogiation in which he was not represented by an attorney, and Brown, just 15, signed confession shortly thereafter. But it wasn’t until DNA was tested that they were released in September of this year.

Michelle Byrom was sentenced to death in Mississippi in an error-riddled trial that excluded evidence her son had admitted to the crime. She had been on death row since 2000 when a court overturned her conviction this year, and put her in jail while she awaits a new trial. In New York, David McCallum was exonerated after 30 years in prison based on a false confession when he was 16 years old. And in Texas, Manuel Velez, an intellectually disabled man, was released from death row after tests on the victim’s brain revealed that Velez could not have caused the injuries.

The emergence of DNA testing in 1989 and the accompanying scientific proof that convicted defendants were innocent called into question many tactics once considered reliable, including false confessions. In 2013, 17 percent of cases in which defendants were exonerated involved false confessions like those by McCollum and Brown. Many involved factual scenarios in which police feed information to suspects who later repeat it back. Many also involved mentally disabled individuals like McCollum and Brown or youths who are more susceptible to coercion, or even beatings, offering leverage in exchange, or simply lying by officers during interrogations of which there is no recording.

6. A rich heir who raped his three-year-old daughter was spared jail time because he ‘will not fare well.’

Wealthy du Pont heir Robert H. Richards IV pleaded guilty to sexually abusing his three-year-old daughter for several years and then telling her it was “our little secret.” But he wasn’t sentenced to day in jail. Instead, he was given an eight-year prison term that suspended as probation, saying he “will not fare well” if sentenced to prison. The case invoked reminders of a wealthy teen who raised the “affluenza defense” last year to describe an affliction of the very wealthy, after having pleaded guilty to intoxication homicide. He was sentenced to ten years’ probation in a plush rehabilitation facility.

Richards’ was also one in a string of rape or sexual assault cases in which defendants have been given sentences far less stringent than recommended for the crime, and not proportional to sentences for other offenses. In a recent Texas case, a judge sentenced a defendant who pleaded guilty to sexually assaulting a 14-year-old girl to just 45 days in prison, followed by mandatory volunteer service at a rape crisis center. In a Delaware case, the wealthy heir of a chemical magnate was sentenced to only probation and no jail time for sexually abusing his 3-year-old daughter. In Montana, a teacher got 30 days in jail for raping one of his students. And another man in Alabama received only probationfor raping a teen.

These sentences stand in contrast to mandatory minimum sentences that start at five or ten years in jail for even low-level drug offenses, and ratchet up from there. But they also stand in stark contrast to others who are drastically over-sentenced or punished sex offenses. After Hayes County, Texas, prosecutors seized on a 2011 law intended to curb sex trafficking, a man who slept with a 14-year-old he met on eHarmony, where she lied about her age, was sentenced this week to life in prison without the option for parole.

7. Georgia executed a man whose lawyer had a serious drinking problem.

When Robert Wayne Holsey was on trial for his life, his attorney was an alcoholic whoadmitted to drinking a quart of vodka every night. The lawyer eventually lost his law license and spent three years in prison over allegations that he took over $116,000 from a client. Perhaps due to the problems in his own life, the lawyer did not present significant evidence during Holsey’s trial indicating that Holsey was intellectually disabled. Moreover, Georgia law makes it extraordinarily difficult for an intellectually disabled individual who is facing a death sentence to prove that fact in court, even though the Supreme Court has held that “death is not a suitable punishment for a mentally retarded criminal.” Holsey was executed earlier this month because he could not overcome the very high standard of proof the state’s law imposes on death row inmates with intellectual disabilities.

8. A mother is still facing jail time for giving her son medical marijuana.

The nation made some extraordinary progress on medical marijuana reform this year, culminating in a move by Congress to halt federal prosecution in states where medical marijuana is legal. But that hasn’t helped Angela Brown or Robert Duncan. Brown’s son Trey suffers severe pain and spasms from a traumatic brain injury. Brown said she tried a barrage of prescription medications before turning to marijuana, as her son was in so much pain and discomfort that he cried himself to sleep and started punching and cutting himself. Brown, like a number of exasperated parents, traveled to Colorado from Minnesota to purchase some cannabis oil regulated under Colorado law. And she reported a familiar story of parents attempting to treat their child’s pain and seizures: within an hour of giving her son medical marijuana his condition was relieved. “Once it hit his system, Trey said the pressure in his brain was relieved,” she told the Huffington Post. “You could literally see the muscle spasms stopping. He felt amazing.”

But after Brown shared her story with the “wrong person,” officials seized the cannabis oil from her home and charged her with child endangerment and causing a child to need protection. Prosecutors are still pursuing her in a case that could send her to prison for two years, even as an already-passed medical marijuana law that goes into effect in 2015 would allow the use of cannabis oil in Minnesota.

In California, Robert Duncan was hauled off to prison in March for running a seemingly state-compliant medica marijuana business. Even the provision in the federal budget that could spare future Duncans will not help those already in jail, nor those being prosecuted under state law, like Brown.

9. Mississippi defendants have been jailed for a year without ever being charged.

There is an epidemic of individuals in the United States jailed for extended periods of time before they’ve been convicted of anything. Many of them are stuck behind barsbecause they can’t afford bail, in a system that in too many jurisdictions punishes defendants simply for being poor, not because they are considered at risk of fleeing pending trial.

But mostly, we at least assume that after a few days or a few weeks, if a jail is going to keep holding them, they are charged with something. Not so in Scott County, Mississippi, according to a class action lawsuit filed by the American Civil Liberties Union this year. Octavious Burks had been in jail for ten months at the time of the lawsuit, on an arrest of attempted robbery with bail set at $30,000. But he had never been charged with anything. He had never been appointed a lawyer. And, by the account of the ACLU, he had twice before been held in jail for periods of 18 months and 16 months, before being released without ever having been convicted of anything.

Joshua Bassett hadn’t been indicted either. He’d been in jail for 9 months with bail set at $100,000, after an arrest for grand larceny and possession of methamphetamine. And he didn’t have a lawyer. But Scott County Senior Circuit Judge Marcus Gordon said he will not appoint Bassett a lawyer until he is formally indicted.

“This is indefinite detention, pure and simple,” said Brandon Buskey, Staff Attorney at the ACLU’s Criminal Law Reform Project. “The county has tossed these people into a legal black hole.”

Why the Supreme Court should be the biggest issue of the 2016 campaign

The Washington Post

Ruth Bader Ginsburg

Supreme Court Associate Justice Ruth Bader Ginsburg | (Tim Sloan/Agence France-Presse via Getty Images)

Supreme Court justice and pop culture icon Ruth Bader Ginsburg left the hospital yesterday after having a heart stent implanted and expects to be back at work Monday. Despite various health issues over the years, Ginsburg insists that she is still of sound body at age 81 (her mind isn’t in question) and has no plans to retire before the end of President Obama’s term to ensure a Democratic replacement. If she keeps to that pledge, and presuming there are no other retirements in the next two years, the makeup of the Supreme Court could be a bigger campaign issue in 2016 than ever before. It certainly ought to be.

As much as we’ve debated Supreme Court cases in recent years, we haven’t given much attention to the idea of a shift in the court’s ideology because for so long the court has been essentially the same: divided 5-4, with conservatives having the advantage yet liberals winning the occasional significant victory when a swing justice moves to their side. And though a couple of recent confirmations have sparked controversy (Samuel Alito and Sonia Sotomayor were both the target of failed attempts to derail their nominations), all of the retirements in the last three presidencies were of justices from the same general ideology as the sitting president. The last time a new justice was radically different from the outgoing one was when Clarence Thomas replaced Thurgood Marshall — 23 years ago.

Whether a Democrat or a Republican wins in 2016, he or she may well have the chance to shift the court’s ideological balance. Ginsburg is the oldest justice at 81; Antonin Scalia and Anthony Kennedy are both 78, and Stephen Breyer is 76. If the right person is elected and the right justice retires, it could be an earthquake.

Consider this scenario: Hillary Clinton becomes president in 2017, and sometime later one of the conservative justices retires. Now there would be a liberal majority on the court, a complete transformation in its balance. A court that now consistently favors those with power, whether corporations or the government, would become much more likely to rule in favor of workers, criminal defendants and those with civil rights claims. Or alternately: The Republican nominee wins, and one of the liberal justices retires. With conservatives in control not by 5-4 but 6-3, there would be a cascade of even more conservative decisions. The overturning of Roe v. Wade would be just the beginning.

Look at what the Supreme Court has done recently. It gutted the Voting Rights Act, said that corporations could have religious beliefs, simultaneously upheld and hobbled the Affordable Care Act, struck down a key part of the Defense of Marriage Act and moved toward legalizing same-sex marriage, all but outlawed affirmative action, gave corporations and wealthy individuals the ability to dominate elections and created an individual right to own guns — and that’s just in the last few years.

Whether you’re a Democrat or a Republican, there is probably no single issue you ought to be more concerned about in the 2016 campaign than what the court will look like after the next president gets the opportunity to make an appointment or two. The implications are enormous. It’s not too early to start considering them.