GOP braces for ObamaCare win

7 Mar 2015 | Author: | No comments yet »

Another Moment Of Truth For Obamacare–And For The Supreme Court.

WASHINGTON — The legal campaign to destroy President Obama’s health care law may be nearing its conclusion, but as the Supreme Court deliberates over the law’s fate, the search for a replacement by Republican lawmakers is finally gaining momentum. Burwell — the dispute over whether the federal government may continue to provide subsidized health insurance to people living in two-thirds of the states. But the prospects of legal victory have also raised practical and political fears that Republicans will take the blame for the health care crisis that would follow.

If the plaintiffs prevail, about 7.5 million residents of federal-exchange states would be at risk of losing their insurance because they depend on the tax subsidies to make their coverage affordable. President Obama and his supporters contend that the restriction is a simple linguistic oversight, but lawmakers who participated in the law’s creation said it was very much intentional.

Should the Court invalidate subsidies for millions of policies purchased through federal health care exchanges, Congress will face significant pressure to create an alternative to Obamacare, and with newly minted majorities in both chambers, Republicans will bear the brunt of the responsibility. Donald Verrilli, advised the court on Wednesday that it gets worse: Many would have to drop their coverage, leaving only the sickest residents in the insurance pool. Ryan of Wisconsin, Fred Upton of Michigan and John Kline of Minnesota, the chairmen of the powerful committees that control health policy, proposed what they called an “off ramp” from the Obama health act that would let states opt out of the law’s central requirements.

The Post neglected to consider that such a ruling would leave Affordable Care Act subsidies subject to the whims of each new administration’s interpretation — hardly a reasonable course of action. That would raise the cost of insurance, driving even more people out and dooming the insurance markets in those states to “death spirals.” At oral argument, Justice Anthony Kennedy seemed disinclined to knock out the subsidies in those federal-exchange states.

David Hogberg, health care policy analyst at the National Center for Public Policy Research, summarized a dozen free-market health care proposals — four advanced by Republican politicians and eight originating from conservative think tanks—that could end up performing that role. (RELATED: GOP Rumble Grows as Obamacare Legal Arguments Commence) “There are a lot of great ideas out there, from the Heritage Foundation and the Cato Institute to Rep. If he joins with the four liberal justices known to favor the government’s position, the ACA will survive this latest — and possibly last — brush with judicial execution. A decision striking down the law as unconstitutional would have been vilified by President Barack Obama, Democrats and liberal mainstream media heavy hitters.

Opposition to the ACA is still a litmus test for Republicans, even though its benefits to millions of Americans are now manifest; in red states, the consequences of an adverse Supreme Court ruling include 2.5 million people losing their health insurance subsidies in Florida, and 1.75 million in Texas, according to the Kaiser Family Foundation. Even a freshman, Senator Ben Sasse of Nebraska, proposed a major but temporary expansion of Cobra — the program that allows workers to extend their employer-based health benefits after leaving a job — to ensure that people do not lose insurance coverage as Washington rushes to find an alternative.

His spreadsheet reveals areas of both consistency and variation between the plans, with some provisions that are widely shared and others that are unique. Roberts decided that penalties to force people to sign up for insurance could be construed as a tax, and thus the law was constitutional under the government’s taxing authority. Political commentator Jonathan Chait has written that conservative healthcare proposals tend to reflect the “Heritage Uncertainty Principle,” a takeoff on the Heisenberg uncertainty principle of physics, which states that certain aspects of reality can never be determined.

His point, referring to the right-wing Heritage Foundation, was that “conservative health-care policies do not exist in any real form” — they’re put forth only to counter whatever plan Democrats are offering, and they evaporate the moment anyone tries to take them seriously. Aides to senior House Republicans said Thursday that committee chairmen were meeting now to decide whether a budget plan — due out the week of March 16 — will include parliamentary language, known as reconciliation instructions, that would allow much of a Republican health care plan to pass the filibuster-prone Senate with a simple majority.

A $2,000 subsidy won’t cover that, but large HSA’s give people the option of not purchasing that policy, and instead paying their health care expenses independently.” (RELATED: Report: Premiums Rising Faster Under Obamacare Than Eight Years Before COMBINED) “King v. The health-care act says such subsidies go to those who buy insurance off an exchange “established by the state.” The problem for the law’s backers is that only 13 states and the District of Columbia established exchanges. Justice Samuel Alito floated the idea of a “stay” to delay the ruling’s impact, suggesting that he might be trying to assuage the anxieties of conservative justices wary of upending so many people’s health insurance.

The latest GOP plans are a bit different; they’re more like Potemkin health plans, like the roadside Potemkin villages supposedly erected by Catherine the Great’s courtier Grigory Potemkin to give her a false impression of prosperity in the Russian countryside. Most states opted out because the law has been unpopular thanks to the way it was muscled through Congress with only Democratic votes and the falsehoods that got it passed — if you like your insurance, you can keep your insurance, if you like your doctor, you can keep your doctor. And Chief Justice Roberts said almost nothing — which suggests, at the very least, that he was not so openly hostile to the government’s case as he was three years ago, when the court famously heard a challenge to the law’s individual mandate. But by eliminating the requirements for businesses to offer insurance and for most people to have insurance, he added, “we could go into a death spiral in the individual insurance market because healthy people won’t buy it.” Republicans say they are ready for that argument.

Hogberg said in the press release. “And as the dozen plans show, there are ways to do it that will help people on the federal exchanges who could lose subsidies.” Content created by The Daily Caller News Foundation is available without charge to any eligible news publisher that can provide a large audience. Kennedy seemed to embrace a key argument that Obamacare critics had made about the amount of deference the court should give to federal agencies when so much money is in play.

In what is destined to become the most famous exchange of the session, he asked Verrilli: “You really think Congress is just going to sit there while all of these disastrous consequences ensue?” Verrilli replied: “This Congress, your honor?” (You can hear Verrilli’s disbelief, and laughter it provoked among court spectators, in the audio of the oral arguments posted on the court website; the exchange with Scalia starts at the 55:35 mark.) As for the proposals themselves, Sen. Ben Sasse (R-Neb.) suggested in a Wall Street Journal op-ed last month that residents of the affected states be permitted to keep their subsidies for 18 months if the court rules against them. But Justice Antonin Scalia pointed out the unambiguous language, saying the law “means what it says.” What’s more, there’s evidence that the language was written to lure states into establishing exchanges.

Sasse, the Nebraska senator, the administration would probably appeal to the 37 governors and legislatures that have declined to build their own state exchanges, offering ways to put the exchanges in their states into compliance with the court’s decision. Ted Cruz (R-Texas) offered a measure to repeal the ACA’s individual mandate, exchanges and subsidies, but to allow people to buy health insurance across state lines. This ancient GOP proposal would launch a race to the bottom in which health insurance would be offered only from states with the loosest, most industry-friendly standards. The trio would keep the health law’s most popular elements: allowing children to stay on their parents’ policies until age 26, prohibiting lifetime coverage limits and protecting people with existing health problems. Roe and Brown also focused on some of the most important, most basic questions of democracy and liberty, the kind of issues that might warrant dramatic judicial intervention.

Brown was about racial equality and the most fundamental right of all Americans to enjoy the same public services and have the same opportunities, regardless of skin color. For a couple earning $32,000, or about twice the federal poverty line, the GOP plan would slash the subsidy nearly in half, as Brookings Institution social insurance expert Henry J. But if the dispute in NFIB was ultimately semantic, at least it grew out of arguments that had been lurking all along in the Obamacare debate — and touched upon a deeply held, deeply important debate between liberals and conservatives over whether government ought to have so much power over health care and how people use it.

Read his blog, the Economy Hub, at, reach him at, check out and follow @hiltzikm on Twitter. And as the people who launched this lawsuit freely admit, even they had no idea that the law’s wording might prohibit the distribution of tax credits in some cities, as they’re arguing now. If the meaning of a statute is unclear, then, according to prevailing and widely accepted legal doctrine, judges should defer to “permissible” readings by executive agencies.

Burwell lawsuit, they will be issuing a decision of historic impact because of what is, at worst, unclear language — language buried so deeply in the statute that nobody even noticed it until months after the law. What’s more, they would almost certainly be making this decision on the narrowest, most partisan basis possible — at the behest of people who openly profess a desire to undo a president’s signature legislation by any means possible, and who know they cannot do so through the legislative process.

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