Thursday, June 25, 2015

Obama Goes Meep Meep, As Americans Keep Their Health Care

Today has seen a bit of buzzing on the Intertubes over the Supreme Court ruling in King v Burwell, the latest attempt by the Far Right to nuke Obamacare from orbit.  Via SCOTUSBlog's Amy Howe:

Since it was enacted in 2010, Republicans in Congress have voted dozens of times to repeal the Affordable Care Act, President Barack Obama’s signature legislative achievement.  With no success on the legislative front, opponents of the ACA have tried their luck in the courts, but that avenue hasn’t proven any more fruitful.  Three years ago, the Court upheld the Act’s individual mandate, which compels everyone to buy health insurance or pay a penalty, against a challenge based on the argument that Congress lacked the power to impose such a requirement.  And today the Court turned back a challenge to the subsidies that many people receive to pay for their health insurance, ending a case that had the potential to seriously undermine the ACA, if not dismantle it altogether...

The victory seems to be for Obama, whose signature act of his Presidency remains (mostly) intact, but for Ezra Klein and for the court majority it was a win for the real beneficiaries: health care insurers, uh six million Americans using those subsidies to keep their health care:

This was a win for the more than 6 million people who will keep their health insurance. It's a win for parents who can be sure their children can go to the doctor, and for minimum-wage workers who can call an ambulance without worrying about debt. Basic health security for millions of people was on the line in this decision. Everything else was secondary to that...
...The decision begins with a lengthy description of Obamacare's "three-legged stool" — the way the law's subsidies, individual mandate, and regulations work together to create stable insurance markets. It then segues into the history of insurance death spirals in states that have tried to reform their health systems without building all three legs of the stool...
Roberts gives a very crisp definition of how these death spirals worked: "As premiums rose higher and higher, and the number of people buying insurance sank lower and lower, insurers began to leave the market entirely. As a result, the number of people without insurance increased dramatically."
...The plaintiffs argued that Obamacare was designed to work in a way contrary to its fundamental goals — that it was, in essence, built to fail, at least in states that didn't establish their own exchanges. The plaintiffs argued this even though no member of Congress ever mentioned this insane plan, no state was ever told about it, and the Obama administration expressly denied it. The majority rightfully saw this as what it is: less a serious argument about the law than an effort to wound Obamacare by successfully pulling a Jedi mind trick on the Supreme Court.
As the Court says, quoting New York State Dept. of Social Servs. v. Dublino, "We cannot interpret federal statutes to negate their own stated purposes..."

Ezra ends his points on what I viewed as a beautiful sentiment by Chief Justice Roberts (someone whom I disagree with vehemently about racism and the dire need to reform our election laws):
In a democracy, the power to make the law rests with those chosen by the people. Our role is more confined—"to say what the law is." That is easier in some cases than in others. But in every case we must respect the role of the Legislature, and take care not to undo what it has done. A fair reading of legislation demands a fair understanding of the legislative plan.
Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.

Roberts is basically quoting Marbury v Madison: the importance of judicial review and the key power of the Supreme Court itself.

Roberts' performance in this ruling deserves some scrutiny, this coming from a constitutional law scholar writing for The Atlantic, Garrett Epps:

...Writing for a 6-3 majority, Roberts, like the consummate A student he is, offered an excellent third-year administrative law exam answer to the questions the challengers posed.
There had been speculation that the crucial votes to save the Act would come from Roberts and Justice Anthony Kennedy, and that they would have to be lured across the Court’s liberal-conservative line by soothing words about the prerogatives of the states. But federalism was the dog that didn’t bark Thursday...
He made clear as he did so that this reading was the correct one as a matter of law—not an administrative interpretation that could be changed by a hypothetical Republican administration. In other words, for better or worse, the ACA is now part of federal law, to be uprooted, if at all, only by a full congressional vote to repeal and, possibly, to override a presidential veto...

Epps doesn't mention it in his article, but he may be referring in that last point to the legal concept of a Chevron Deference: where the courts allow the administrative offices latitude in interpreting confusing laws.  There were Court observers who figured the Justices would opt to use that as an "out" on making a decision here - leaving it to future (potentially Republican) Presidencies to nuke Obamacare - but Roberts doesn't go that way.  He leaves it squarely on Congress to make the laws here, and as Epps notes defers to the legislative intent behind the ACA's passage in the first place:

Roberts read the statute in a broad context indeed, including the history of healthcare policy and the legislative process that produced the ACA. Massachusetts had the first successful state healthcare plan, he noted. The three reforms at the heart of its plan are a ban on insurers refusing coverage or raising rates on individuals on the basis of their heath; an “individual mandate” that all taxpayers secure coverage; and tax credits for those who otherwise could not afford coverage.
Those reforms are at the heart of the ACA as well. If the Court agreed with the challengers, the gap between states operating state exchanges and those without would be huge: “only one of the Act’s major reforms would apply in States with a federal Exchange.” That’s because without the tax credits, lower-income taxpayers would get a “hardship” exemption from the “mandate.” Only the insurance reforms requiring companies to insure the sick as well as the healthy (“guaranteed issue”) would apply—and the experience of the states shows that guaranteed issue in isolation leads to a “death spiral.” Customers wait to get sick before buying insurance; companies, saddled with only the bad risks, must jack up rates; and then the private insurance market contracts or even collapses.
“It is implausible,” he wrote with some understatement, “that Congress meant the Act to operate in this manner...”
...But he concluded: “We must respect the role of the legislature, and take care not to undo what it has done.” The ACA was passed “to improve health insurance markets, not to destroy them...”

There's been enough years now to establish what kind of Chief Justice that Roberts was going to be, and it's looking as though he is working as someone with a strong conservative - that's small-c classic conservative, not the radicalized modern conservative looking to shift everything further rightward) - legal philosophy: a limitation of decisions focusing on legislative intent first, relying on executive interpretation where legislative intent is too vague, with an eye towards maintaining the judicial review powers of the Court at the end.  

It's not perfect - Roberts' world-view still focuses on the intent of laws to the exclusion of how those laws really work (SEE denial of racism as an ongoing concern for voting rights AND the impact millions of dollars have on political campaigns) - but in the matter of the Far Right going after Obamacare with chainsaws Roberts is refusing to over-reach and perform "judicial activism" in making his own interpretations trump the intent of the other two branches of government.

Which leads me to wonder about how much of this Obama knew about ahead of time when he pushed for the ACA "Obamacare" package in the first place all those years ago.  True, by 2009 our Health Care system was facing utter collapse without any substantive reforms.  With a Democratic majority in both houses of Congress, Obama could have pushed for a more liberal - read: single-payer - package.  But he insisted on pushing an agenda modeled on the conservative reform alternative that the Republicans offered - and never followed up on - back in 1993 to oppose Clinton's ultimately doomed plan.

At the time, it looked like Obama jumped out too early for a compromise package in an attempt to secure Republican votes for a bipartisan "victory" bill.  It seemingly backfired because the Republicans decided in toto to deny Obama any "victory" at all, sticking to an obstructionist position that painted themselves into a corner.  David Frum's classic "Waterloo" rebuke of the obstructionist position made it clear how that GOP agenda backfired on Republicans and not Obama, and we're seeing the results of that even today.

Because by going for a "compromise" bill like the ACA - based on market-based reforms that Republicans themselves argued for in 1993 - Obama took away the one real alternative Republicans today could offer.  They've got nothing else, other than basically eliminating the reforms altogether... which basically brings back the out-of-control costs and lack of health care for far too many Americans.  Republicans keep saying they can "Replace" Obamacare after the "Repeal", but when pressed on what the replacement can be the Republicans can't offer a legitimate plan

One of the narratives bouncing around the Beltway media is how this was not only a victory for Obama but how it got the Republican Congress - and the primary candidates - off the hook.  If Roberts had led a ruling in favor of the plaintiffs in this case, it would have severely crippled the ACA across every (Red) state that didn't have its own subsidies plan in place.  The pressure on Congress to pass any replacement law to fix that gap - by the millions losing coverage, by insurance companies losing millions of dollars, the sheer bad optics of failing to act - would have been enormous, but the Republicans in both sides of Capitol Hill had spent too many years demonizing Obamacare altogether to where any real solution was out of the question.

This ruling still doesn't let Republicans off the hook, however.  This only makes it worse for them, because now the pressure is on from the Far Right - the Teabagger crowd - to go Full Repeal again (for what, the 197th time?) and make that repeal a major platform issue for the primaries.

The problem is, as Klein notes over and over the last few years, Obamacare is working.  Costs are going down and are lower than the projections worried about.  The numbers of insured are up (which aids in handling costs and coverage, and improves the chances more Americans are getting healthier).  The only reason the picture isn't rosier for Obamacare is because there's not enough Medicaid coverage for the poorer Americans in Republican-led states, and that's more to do with the Republicans in charge who are blatantly refusing to accept billions in federal aid.  In all respects the longer Obamacare chugs along the likelier Americans are going to notice that it's working as intended, and are going to question why Republicans are too keen to kill something that, you know, works.

This is going to be a long-term victory for Obama no matter what.  This ruling makes it incredibly unlikely any court challenge can break the ACA.  It is going to have to take the Republicans retaining control of Congress AND winning a Presidential race that is sliding further into clown car status for the GOP.  By 2016 the odds favor the fact that Obamacare will prove itself an effective federal program, and any attack by the Republicans against it will only bounce around in their own epistemic bubble while more Americans decide to vote for a Democratic Presidential candidate (and Senate campaigners) who will keep it working.

As Andrew Sullivan kept noting with wonder and awe before he quit the blogging profession, with regards to Obama's ability to wring long-term victories over self-imploding opponents: Meep Meep.

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