Major insurers everywhere have dumped massive cash into lobbying against the ACA. Their corporate-owned Republicans have insisted it would destroy America in any number of strange and unusual ways. Now a new study reveals why they say helping sick people afford to see a doctor is bad for the country.
Data has become available for 2014 and 2015 enrollees to Blue Cross and Blue Shield, who were picked up through the Affordable Care Act’s health insurance exchanges. It shows that the people who the ACA was specifically created to help are actually going to the doctor and using medical services . Huge shock, right? The entirety of the Republican and corporate establishment’s opposition to the ACA resides in a single thing — money. More for them, and none for regular people. If the poor and middle class suffer and die needlessly, that’s just their cost of doing business.
People who got back into the insurance market, thanks to the ACA, were shown to have a 22 percent higher medical cost than those with employer-based coverage in 2015. The average monthly spending numbers for the new enrollees was $559 in 2015 compared to $457 for group members who had it through an employer. The same new enrollee segment increased from $501 in 2014 to the previously mentioned $559 in 2015.
The irony of the situation is that the very corporations who are whining about having to pay the bills of sick people were the primary engineers of their own self-imposed disaster. These are the same corporations that spiked health insurance costs, causing people to be unable to afford it. They are also the same corporations that outright refused to sell people coverage, because of “pre-existing conditions.” Pre-existing conditions that could be literally anything they wanted them to be. After sometimes decades of unmanaged health issues, these new enrollees are consuming services at elevated rates. Insurers basically screwed themselves for short-term profits, and now they have to pay some of it back. Pardon me if I am less than sympathetic towards them.
This shows just how desperately needed the ACA is, and how incredibly dishonest health insurers are about their business model. The fact insurance payouts rose as much as they did in as short a time is proof just how many Americans were suffering without need. That is where the darker truth of the health insurance industry comes into plain view. These companies are still wildly profitable . They just want to keep more money for themselves. Simply put, they’ve become a caricature of their own greedy reputations.
The tragedy of this all is that the same data showing how desperately needed the ACA is, also is being used as misinformation to completely lie to America about how bad it is for the country. The only tidbit being presented is that it is increasing costs to insurance companies, which does mean their premiums might go up. However, the overall increase in premiums is at a slower rate than before Obamacare became law, even with the increased payouts for more consumption of services.
Right wingers and unscrupulous insurance companies are taking the very truth about why it is a good law, and perverting it into a lie about how it is bad by purposefully omitting all context until the “truth” is whatever they want it to be. If you add in the fact that initial expenditures are going to be higher until we catch up with decades of a lack of care, you can argue a case that premiums would have actually dropped if all other things were equal, due to massive amounts of new customers spreading out the cost burden.
As more new data becomes available, and initial over-consumption tapers off, the last arguments to be made against the law will ultimately boil down to profit over people. If anything will prove how obsolete the American health insurance industry is, and why single-payer is needed, that will be it.
A new report released Tuesday from the Blue Cross and Blue Shield Association underscores the need for the Affordable Care Act’s reforms, finding evidence that the health law effectively expanded coverage to America’s most vulnerable citizens.
According to the data, Obamacare’s newest policyholders were more likely to have a variety of significant health problems — in other words, reasons that insurers might have denied them coverage before the Affordable Care Act was passed.
Newly enrolled policyholders were twice as likely to have diabetes, twice as likely to have Hepatitis C, and three times as likely to have HIV. They also had higher instances of high blood pressure, diabetes, depression, and coronary artery disease. Hospital admission rates were 84 percent higher for these policyholders, and the frequency of their doctor and specialist visits were 26 percent higher.
“It’s no surprise that people who newly gained access to coverage under the Affordable Care Act needed health care. That’s why they were locked out of coverage before,” Ben Wakana, a spokesman for the Department of Health and Human Services, remarked.
The Blue Cross and Blue Shield Association study is significant due to the sheer size of claims data analyzed. Since Blue Cross and Blue Shield plans are purchased across the country, researchers had access to claims for 4.7 million people. About one-third of those studied had been continuously enrolled since 2013; the others signed up in 2014 or 2015.
The report also found that the influx of sicker, previously uninsured patients into the health insurance system is contributing to a rise in insurance premiums nationwide. The increased need for care is driving insurance costs up, even as many people are receiving better care.
Thanks to Obamacare, Americans now have greater access to private health insurance plans through the law’s new individual marketplaces, as well as protection against insurance companies denying them coverage based on pre-existing medical conditions.
The justices already ruled the law constitutional. They’re done for now.
WASHINGTON — The U.S. Supreme Court has snubbed yet another Obamacare case.
The justices on Tuesday declined to take up the latest legal challenge to the Affordable Care Act — a quirky lawsuit that sought to invalidate the law on the grounds that it violates the Origination Clause of the U.S. Constitution.
Under the clause, “all bills for raising revenue” — read: taxes — must “originate” in the House of Representatives. But Matt Sissel, the man behind the case, argued that must mean the health care law is unconstitutional because, in his view, the legislation originated in the Senate.
“The reason the Constitution requires all bills for raising revenue to originate in the House is to keep the taxing power — of which the founders were justly suspicious — in the hands of the most democratic branch of the federal government,” said Sissel’s appeal to the Supreme Court.
That argument was a response to the court’s decision in NFIB v. Sebelius, which in 2012 upheld the law on the basis that its so-called individual mandate — the requirement that every American carries health insurance, or else pay a penalty — constitutes a “tax on going without health insurance.”
But Sissel, an artist, challenged that requirement, noting in court papers he’d much rather “devote his resources to building up his art business rather than buying health insurance.”
Even though two lower courts rejected his arguments, he nonetheless pressed on with his appeal to the Supreme Court. What may have prompted Sissel to take his case all the way to the top was a lengthy rejection issued by an appeals court last summer — essentially telling him that his constitutional argument was meritless, but in which four conservative judges said that the case underscored “the importance of this issue to our constitutional structure and to the individual liberty protected by that structure.”
But even those judges, in the end, couldn’t bring themselves to rule that the challenger had a winning case, and concluded that the Affordable Care Act properly originated in the House of Representatives.
“To read my opinion so far, you might wonder whether I think the world will end not in fire, or in ice, or in a bankruptcy court, but in an Origination Clause violation,” wrote U.S. Circuit Judge Brett Kavanaugh for himself and the three other judges. “This case is not Marbury v. Madison redux. But the case is still quite important.”
Apparently not important enough for the Supreme Court to get involved.
The Senate bill would all but erase the health care overhaul by dismantling some of its key pillars
(WASHINGTON) — With Republicans openly welcoming a preordained veto, the Senate on Thursday approved legislation aimed at crippling two of their favorite targets: President Barack Obama’s health care law and Planned Parenthood.
With a House rubber stamp expected in days, the bill would be the first to reach Obama’s desk demolishing his 2010 health care overhaul, one of his proudest domestic achievements, and halting federal payments to Planned Parenthood. Congress has voted dozens of times to repeal or weaken the health law and repeatedly against Planned Parenthood’s funding, but until now Democrats thwartedRepublicans from shipping the legislation to the White House.
Thursday’s vote was a near party-line 52-47.
Republicans said an Obama veto — which the White House has promised — will underscore that a GOP triumph in next year’s presidential and congressional elections would mean repeal of a statute they blame for surging medical costs and insurers abandoning some markets. They lack the two-thirds House and Senate majorities needed to override vetoes, assuring that the bill’s chief purpose will be for campaign talking points.
“President Obama will have a choice,” said Senate Majority Leader Mitch McConnell, R-Ky. “He can defend a status quo that’s failed the middle class by vetoing the bill, or he can work toward a new beginning and better care by signing it.”
Republicans blame the bill for surging health care costs and insurers abandoning some markets. Government officials said this week that health care spending grew at 5.3 percent in 2014, the steepest climb since Obama took office.
Democrats noted that under the law, millions of people have become insured and said their coverage has improved, with policies now required to insure a wide range of medical services.
“Do they talk to their constituents? Do they meet with them?” Senate Minority Leader Harry Reid, D-Nev., said of Republicans.
With just a 54-46 edge, Republicans had previously failed push such legislation through the Senate. This time, they used a special budget procedure that prevents filibusters — delays that take 60 votes to halt — and let them prevail with a simple majority.
Party leaders initially encountered objections from some more moderate Republicans leery of cutting Planned Parenthood’s funds and from presidential contenders, Sens. Ted Cruz of Texas and Marco Rubio of Florida, who threatened to oppose the measure if it wasn’t strong enough.
In the end, Cruz and Rubio voted “yes.” Moderate GOP Sens. Susan Collins of Maine and Mark Kirk of Illinois voted no, the only lawmakers to cross party lines, while Democratic presidential candidate Bernie Sanders, I-Vt., did not vote.
The Senate bill would all but erase the health care overhaul by dismantling some of its key pillars, including requirements that most people obtain coverage and larger employers offer it to workers.
Also eliminated would be its expansion of Medicaid coverage to additional lower-income people and the government’s subsidies for many who buy policies on newly created insurance marketplaces. And it would end taxes the law imposed to cover its costs, including levies on higher-income people, expensive insurance policies, medical devices and indoor tanning salons.
The bill would also terminate the roughly $450 million yearly in federal dollars that go to Planned Parenthood, about a third of its budget. Federal funds can be used for abortions only in rare cases.
A perennial target of conservatives, the group has been under intensified GOP pressure this year for its role in providing fetal tissue to scientists. Citing secretly recorded videos of Planned Parenthood officials discussing such sales, some abortion foes have accused the organization of illegally providing the tissue for profit. The group says the videos were deceptively doctored and say it’s done nothing illegal.
Planned Parenthood spokeswoman Dawn Laguens said the Senate had given the group’s millions of clients “the cold shoulder of indifference.”
Senators voted on over a dozen amendments — all symbolic, since the measure was destined to never become law.
They rejected two amendments that would have restored Planned Parenthood’s money. They blocked proposals for tightening gun curbs, a response to Wednesday’s mass shooting in San Bernardino, California, last week’s fatal attack on a Planned Parenthood clinic in Colorado and last month’s terrorist massacre in Paris.
They also voted 90-10 to permanently repeal taxes on high-priced “Cadillac” insurance policies, a strong signal of growing congressional momentum for erasing that levy.
GOP lawmakers said the overall bill could serve as a bridge to a future Republican health care law. Though Obama’s overhaul was enacted five years ago, Republicans have yet to produce a detailed proposal to replace it.
“It’s either repeal or nothing,” Sen. Jon Tester, D-Mont., who heads the Senate Democratic campaign committee, said of the GOP’s failure to propose an alternative. “I’ll take that to the polls and we’ll talk about it until the cows come home.”
Republicans argued voters were on their side.
“We’ve reached a pretty scary time in our nation’s history where we have Americans writing and calling their elected representatives saying they need relief from their own government,” said No. 2 SenateLeader John Cornyn of Texas. “We have a mandate, I believe, to repeal this terrible law.”
It’s great that we’re no longer pretending the Supreme Court is immune to politics
Cue up the sad David Brooks violin playing softly in the corner of a dark alley at 3 a.m., because Americans have no faith in powerful institutions anymore. One of those institutions would be the marbled shrine atop our third branch of American government, the Supreme Court. A new Associated Press poll shows that “only 1 person in 10 is highly confident that the justices will rely on objective interpretations of the [Affordable Care Act] rather than their personal opinions” in the Court’s impending King v. Burwell decision.
To us, that 10 percent figure seems way too high. As far as we can tell, it’s not 1 in 10 Americans who view our Supreme Court as a neutral collection of jurists who just want to call “balls and strikes,” but 1 American total: Chief Justice John Roberts. And maybe even not him?
The American people, the always trusty American people, have the Supreme Court’s number here. As with so many cases about why the American people have lost trust in a powerful institution, we can look to some of the powerful institution’s recent actions, going back at least to Bush v. Gore through Citizens United and Hobby Lobby and whatever primetime hit job comes next.
That next hit job may come soon in King v. Burwell, which, if ruled for the plaintiffs, would invalidate premium subsidies for those who’ve purchased individual health insurance plans on federally facilitated exchanges. The expected decision based on tea-leaf readings coming out of oral arguments was 5-4 or 6-3 in favor of upholding the subsidies, which tells you a lot about how weak the case is. But there is another possible outcome: 5-4 to strike down the subsidies, because the Supreme Court is ruled by a five-member majority of conservative justices who think that the Affordable Care Act is dumb.
The last time a legal challenge to Obamacare of this breadth made it to the Supreme Court, four justices voted not just to strike down the individual mandate but the entire law as well, because they believed that the law was dumb. They didn’t like it! Get rid of it! John Roberts originally sided with them but then, to the consternation of his conservative colleagues, switched his vote because such a hackish decision would have made the Supreme Court look too hackish. Roberts contented himself merely to gut the hell out of the Medicaid expansion and force the Obama administration to acknowledge that the individual mandate is a tax.
Very few Court watchers are basing their predictions of the King decision on the merits of the case, and rightly so. If it was being decided on the merits of the case, everyone would be betting that it would be upheld 9-0. Does anyone think that’s going to happen? No. It will all come down to how John Roberts, and perhaps Anthony Kennedy, feel about managing the politics. They want to screw over Obamacare but yeeeesh, would that backfire on the Court and conservatives? Would that make life more difficult for the Republican party heading into 2016? On the other hand: Would John Roberts ever eat lunch in Conservative This Town again if he sided with The Libruls to uphold a core component of Obamacare? It’s all about finding the right balance of these competing political considerations. The Democratic and Republican parties rightly recognize the nature of the situation here and have spent months trying to get inside John Roberts’ head. It is what it is.
Let’s consider a more generous version of what’s happened to the Supreme Court of late: that it’s merely followed the broader trend in American politics towards polarization. Antonin Scalia and Ruth Bader Ginsburg might be looking at the same piece of legislation before them but seeing something completely different, so divergent have the liberal and conservative worldviews become. And these are justices who were appointed a generation ago. The next round of justices will have made their careers during this time of high-stakes judicial polarization.
That next round of justices may come very soon, since several Supreme Court justices are approximately one million years old. As Ian Millhiser writes at Think Progress, Rick Perry correctly emphasized the importance of the next presidential election in a speech this weekend:
“Something I want you all to think about is that the next president of the United States, whoever that individual may be, could choose up to three, maybe even four members of the Supreme Court,” Perry told the South Carolina audience. So this election “isn’t about who’s going to be the president of the United States for just the next four years. This could be about individuals who have an impact on you, your children, and even our grandchildren. That’s the weight of what this election is really about.”
I hate the “you have to vote in the next election because of the Supreme Court!” argument. I hate it because it lets the candidates off the hook: they can offer nothing whatsoever to voters and then rely on SCOTUS fearmongering to get out the vote. I also hate it because it’s a very credible argument. There is never going to be another David Souter, or a justice who gets confirmed and then has an ideological shift on the bench. This next presidential election will also be an election for the next generation of the Supreme Court, and it’s no tragedy that most Americans understand this cynical reality.
When the Affordable Care Act’s Republican critics were making all kinds of dire predictions about the inevitable “failures” of “Obamacare,” one of the charges was that American consumers will end up hating the coverage they receive through the reform law.
And for those ACA detractors looking for something, anything, to bolster their contempt for the law, I’m afraid I have more bad news: Americans who received coverage through Obamacare tend to be quite pleased with the results.
Obamacare customers nationally also tended to be more satisfied with their plans bought in 2014 than people who primarily have traditional job-based health coverage – the majority of those with insurance – the study by the J.D. Power market research company found.
And those customers from last year were as happy with their coverage as other people who had multiple choices when it came to buying plans outside Obamacare markets from insurers or brokers, according to the J.D. Power report, which was released Thursday.
The full market-research report is available online here.
This is obviously just one study, and other analyses may draw other conclusions, but let’s not forget that this isn’t the first evidence we’ve seen pointing to high customer-satisfaction rates for those who buy coverage through the Affordable Care Act.
Politicoreported back in November: “A majority of Americans give good reviews for insurance they recently acquired through government exchanges within the past year, a new poll shows. With the second round of Obamacare enrollment set to begin on Saturday, 71 percent said their coverage through the exchanges was good or excellent, according to a Gallup poll released Friday. Another 19 percent said the coverage was fair, while 9 percent rated it poorly.”
The J.D. Power survey … shows that people with employer-sponsored coverage who have “multiple plan options” have the exact same satisfaction rating as the people on Obamacare. And this might actually circle back to the cost issue. People shopping on Obamacare have the option to decide whether they want a plan with a high premium or a low one. Shoppers have typically gravitated toward the lower-cost premium. The average monthly premium on Healthcare.gov is $374. For people getting coverage at work, the average premium is $464.
What this data suggests is that health-care shoppers seem to be okay with a trade-off: they like the idea of selecting a lower-premium plan, even if it might mean incurring higher out-of-pocket costs down the line – and are more satisfied customers as a result.
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 percentof 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.”
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.
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.
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.
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.
Fox News admitted on Tuesday that a conservative-led lawsuit against the Affordable Care Act would raise health care premiums for millions of Americans. But then in its on-screen chyron, the network sought to attribute the increases not to the litigants involved in the case, but to President Obama, potentially confusing viewers.
“Could legal challenges to taxpayer subsidies put Obamacare in a death spiral?” Fox host Bill Hemmer asked, pointing to “a new study funded by the Department of Health and Human Services saying the health care law may be damaged beyond repair if you take the subsidies away, if they’re eliminated.”
Ongoing lawsuits are challenging the legality of providing subsidies through health insurance marketplaces in states that refused to set up their own exchanges. If those legal challenges succeed, the analysis that Hemmer is referencing — which comes from the RAND Corporation — did in fact conclude that premiums in those states could increase by as much as 43.3 percent. RAND’s researchers found that if federal subsidies to federally-run exchanges are ruled to be illegal, millions of people would have to pay more for coverage and could leave the risk pool, leading to a death spiral in which only the sickest people remain insured. Enrollment would fall by 68 percent and 11.3 million Americans could become uninsured.
Hemmer and Fox contributor Byron York huffed and puffed about the dangers of such a ruling, calling it “colossal” — despite the fact that the suits have been filed by conservatives, are supported by Republican lawmakers, and have been reported on favorably by the network in the past. The National Review has called the lawsuits and “ingenious” way to halt Obamacare. Fox, celebrated the D.C. Circuit Court of Appeals’ ruling against the administration on July 22 by pronouncing, “one by one they’re getting chipped away so it’s starting to collapse.”
And although the price increases are a direct result of a negative ruling, Fox News ran the story under the chyron “sticker shock again for some Obamacare enrollees as premiums set to rise,” implying that the law’s backers would be responsible.
So far, an appellate court in Virginia has ruled that the subsidies were legal, but a three-judge panel on the D.C. circuit disagreed. The full D.C. court is expected to reverse that decision, however, eliminating the circuit split and reducing the possibility that the Supreme Court will take up the matter. Another ruling against the law is still working its way through the legal system.
The administration contends that even though the law does not explicitly state that federally-run exchanges are to offer subsidies for coverage, the intent of its framers — as well as its other provisions about achieving “near-universal coverage” and financial security from medical bankruptcy — strongly imply that such credits must be made available.
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.”
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…
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.”
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.
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 toundermineObamacare. 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.