King v. Burwell was the case argued before SCOTUS yesterday over whether a provision in the ACA means that subsidies can only be given when a state itself has established an exchange, or if the state exchanges created by default by the federal government can also provide such exchanges.
While confessing that I am a huge supporter of the ACA (at least as compared to the status quo ante and in comparison to the vague handwaving the GOP has offered in lieu), the case seems like a huge waste of time to me, right alongside the 50-odd times the GOP have tried to overturn the ACA in Congress since getting a majority in 2010.
To that end, it's disappointing but not at all surprising that the case hinges on one or two centralistish justices, with the usual 4 "liberals" apparently lining up behind the government's arguments, and the usual 3 "conservatives" lining up against. The silliest instance of which was Antonin Scalia asserting that it was a simple fix if SCOTUS tossed out the subsidies, saying with an apparently straight face:
"What about what about Congress? You really think Congress is just going to sit there while while all of these disastrous consequences ensue. I mean, how often have we come out with a decision such as the you know, the bankruptcy court decision? Congress adjusts, enacts a statute that that takes care of the problem. It happens all the time. Why is that not going to happen here? […] I don't care what Congress you're talking about. If the consequences are as disastrous as you say, so many million people without without insurance and whatnot, yes, I think this Congress would act."
The Justice ignores that Congress actually very much did allow "so many million people without insurance and whatnot" for a very long time, that this particular Congress clearly won't fix the statutory language of the ACA to make the subsidy question clearer, and that there are many in Congress would be quite happy to see the previous situation return and are on record as saying so.
Scalia is either disingenuous or else clueless. My bet, for the historical record, is the former.
I guess we'll find out the answer to the question later this year.
(Transcript of the arguments here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-114_lkhn.pdf)
Will concern for states’ rights win out in subsidies battle? Today’s argument in Plain English
After nearly ninety minutes of oral arguments today in King v. Burwell, the challenge to the availability of tax subsidies for people who purchase health insurance on a marketplace created by the federal government, six Justices had tipped their hands. Justices Elena Kagan, Sonia Sotomayor, Stephe
I'm cautiously optimistic. Roberts didn't tip his hand much, but Kennedy seemed quite concerned about the coercion this would represent for the states (create an exchange or thousands to millions of your citizens will die).
Of course, I was kind of hoping they'd throw it out based on the complete lack of standing, but what can you do.
The issue is limited to States which boycotted the ACA, forcing federal exchanges, if they too may benefit from federal tax subsidies for insuring the poor.
A true red-blooded, anti-Obamacare Republican with a tea-party accent would say no. After all, there are no poor Republicans.
+Brittany Constable The standing issue, apparently, didn't get much of a push from the government, for whatever reason.
Kennedy's concern is an odd one; those states hadn't been doing anything about those citizens already, so why would they feel coerced (any more than they were being coerced by the Medicaid expansion, which SCOTUS made optional)?
+Joe Chalverus Or, if there are, they deserve it because clearly they aren't working hard enough.
Anything to get rid of Obama care ,is good ,because the HHS mandate in it ,is evil !!!!!!
I think he meant the political pressure from all the people who would lose their newly-obtained benefits, plus from the insurance companies that would be sent into a death spiral as healthy people pull out. The states have been able to get away with not setting up exchanges because there's the federal backup. Without that, the whole system falls apart.
The plain language says if your state did not start an exchange, no subsidies. Simple.
+Mike McDonald No it doesn't say that.
The depressing thing is the thing no one talks about
These Judges WILL decide this because of party affiliation.
Those Judges WILL decide that because of party affiliation.
That is no way to run a justice system.
I read that ACA can continue easily in the states with exchanges. Those states tend to be richer and be subsidising the non-ACA states. This means that the Democrats want an outcome that will hurt their voters, and Republicans want an outcome that will hurt their voters.
Scotus will legislate from the bench and rewrite the law, or the dictator in chief will fix it with his pen.
"WE HAVE TO PASS THIS BILL SO WE CAN UH…FIND OUT WHATS IN IT" DEMOCRAT NANCY PELOSI. SO DEMOCRATS MADE A MISTAKE FORCING THIS LAW DOWN AMERICANS THROATS WHICH WAS WHAT CREATED THE TEA PARTY. DEMS FUCKED IT UP BY RUSHING IT THROUGH. BUMBER CARE SHOULD BE ENDED!
+jack Brennan Really? "Evil"? How so, vs. any other taxation?
+Brittany Constable I am unswayed that most of the states involved would lift a finger to do anything about it. The people losing their benefits because of lack of subsidies are unlikely to be considered a political force; insurance companies will focus on national action to return to the status quo ante, which is just what the GOP is eager to do.
+Mike McDonald The plain language says that subsidies are available for the state exchanges. It also says (elsewhere) that if the state does not set up an exchange, the federal government can operate on on their behalf. Doesn't really sound like a problem to me.
+EJ LaFleur More like "We have to pass this bill before the impending lack of a sufficient Democratic super-majority to overcome GOP filibusters in the Senate makes it impossible to pass something that the majority of both Houses have already compromised the hell out of and the American people overwhelmingly want."
In any sane universe, these sorts of hiccups happen in major, lengthy legislation all the time, but are simply amended / patched and moved on. The GOP's decision to make this (and everything else since 2008) a do-or-die bttle has meant that nothing could be passed regarding the ACA after that narrow window went by.
+Dave Hill
The HHS mandate
Says you have to provide abortifacients and things of that nature,
You know ,insurance that they make you buy ,or fine
you,The little sisters of the poor, have to buy insurance ,that provide,abortions his stuff,for their employees, but if you're religious guy against this stuff, you still going to buy into it ,that's evil??right ???
+jack Brennan The HHS mandate says that insurance policies have to include coverage for abortion, and birth control, and transfusions, and medicine, and other things that various people consider sinful to do. It doesn't mandate anyone to use that coverage.
"WE HAVE TO PASS THIS LAW SO THAT WE CAN FIND OUT UH….WHAT'S IN IT" DEMOCRAT NANCY PELOSI. THE ACA WAS CRAMMED DOWN AMERICAS THROAT WHEN 80% OF THE COUNTRY DIDN'T WANT IT. IT WAS RUSHED THROUGH CONGRESS SO NO ONE HAD A CHANCE TO READ IT. IT IS THE CREATOR OF THE TEA PARTY. SO IF IT IS MESSED UP, IT IS THE DEMOCRATS THAT MESSED IT UP. IT SHOULD BE DECLARED ILLEGAL, DISMANTLED AND SENT BACK TO THE DEMOCRATS TO REWRITE IT, MAKE SURE EVERYONE HAS A CHANCE TO READ IT AND PASS IT AGAIN OR PUT IT IN THE TRASH!
+EJ LaFleur
1. The context (and actual wording) of the Pelosi quote can be found here: http://www.mediaite.com/tv/the-context-behind-nancy-pelosis-famous-we-have-to-pass-the-bill-quote/ — essentially that people will not understand the ACA's benefits until it's in place and the firestorm of rhetoric about it had (ha!) settled.
2. Polling on national health insurance reform varies depending on how you ask the question and what you ask about it. As a key issue of the 2008 election season, it's disingenuous to say the American people didn't want it; polling on the matter in general had been favorable for some time. As to the bill itself, it polled (and still polls) better when you call it the ACA instead of Obamacare (indicating the emotional rhetoric about it from the right has been successful), and key provisions of the bill — removing preexisting condition restrictions, most famously, have always had high support.
Looking at it as a whole, here is some consistent polling coverage, starting from when it was signed into law in March 2010: http://kff.org/interactive/health-tracking-poll-exploring-the-publics-views-on-the-affordable-care-act-aca/
Interestingly, when you look at the "Unfavorable" numbers, there's a substaitial number of dissenters from the Left that think that it didn't go far enough.
3. I've already discussed the "rush" aspect.
4. The Tea Party was in its nascent form before the 2008 election (elements can be found back in 2
+Dave Hill
It's a huge problem, Dave. Even low information voters can read and understand this provision. SCOTUS is already exposed as an accessory to this constitutional crime. Now it must twist plain language to assist Obama and his PPACA. It is dawning on Americans that SCOTUS decisions don't equal constitutionality. 37 states did not set up exchanges.
+Mike McDonald Yes, they did not. Some did not because they have some sort of ideological opposition to the ACA. Others did not because setting up an exchange is a non-trivial IT task (some that did not actually began theirs, then abandoned it in favor of the federal exchange).
I agree that the specific language in the provision you're pointing at seems to say one thing. I disagree that, in the context of both other provisions in the bill and the clear intent of same, that the law is as the out-of-context quote makes it seem.
“I’m opposed being forced to pay for abortions and birth-control”
I was opposed to the Iraq War, where do I get my tax refund?
“Why should I have to pay for somebody else’s healthcare”
That’s how ALL insurance works. Most people pay in more than they get out, partly to fund the profit, partly to pay out the claimants.
Also, why only extend that to people’s health? I am not a victim of anyone who has been through the justice system. Therefore I am subsidising those who have been. If you want justice, you pay for it. Lets abolish a publicly funded law system. And indeed fire service. If people want coverage then they should take out insurance.
This is a lot fairer. Rich areas have less crime but pay more tax, poor areas the reverse is true. The rich are subsidising justice for the poor.
+Dave Hill
As our friend Jon Gruber, distinguished professor of economics, has informed us, the provision denying subsidies to non state formed exchanges, was designed to strong arm the states into forming exchanges. It didn't work.
Most of our SCOTUS problems will be avoided by a careful reading of our Constitution. Article III, Section 1; in part: … "The judges, both of the supreme and inferior courts, hold their offices during good Behavior,…"
+Mike McDonald I think it will eventually work. Here's why.
Let's suppose the SCOTUS actually reads the US Constitution and this law. Not another county's or put on their hololens and find something in the US Constitution or this law that is not really there, but actually does their job and actually reads the 1,000+ page law and sides with the rule of law. Many people will loose their subsidy. They will moan and cry. Many of the State's politicians do not have a back bone. It is like a parent who can't handle the squealing of a child throwing a temper tantrum and gives them anything they want to stop the screaming. These politicians will not tell them the truth. They will back down and say, "ok, ok, here have your subsidies."
I believe the word "STATE" was put in by design. If the administration wins at the SCOTUS everyone gets their "free" subsidy. If the administration looses, the screaming children will still get their subsidies.
+Sql Burn
Then the problem will be that the government cannot repeal the economic laws of supply and demand, and cannot create free market competition where none exists, and we will be condemned to live with, or die from, the consequences.
+Mike McDonald Gruber's role in the ACA has been largely inflated, first by Gruber himself, then by the ACA's opponents. While he did make that statement, it was in 2012, long after the legislation was pass (and contradicted other statements he made during the same speech, e.g., that the state exchanges will "be the place that people go to get their subsidies for health insurance. In the law it says if the states don’t provide them the federal backstop will."
Further, the actions of GOP and Dem governors who did study the law after passage in deciding to set up an exchanges, indicate that they were certainly unaware of any "stick" that the plaintiffs in King are suggesting, from Gruber's more-often-quoted statement was the goal of supposedly differentiating which exchanges got subsidies. A distinctly not-friend of the Administration or of the ACA, said in 2013 that after he and his administration had spent two years analyzing the law, "there’s no real substantive difference between a federal exchange, or a state exchange," and set things up in his state accordingly. When laws with strings on money to be passed on to states from the federal government are hidden so that state governments are unaware of them when acting on those laws, it's long been recognized by SCOTUS itself unconstitutional for those strings to then be enforced.
Walker was joined by GOP governors Dave Heineman (NV) and Bob McDonnell (VA) in concluding there were no substantive differences between state exchanges and exchanges run by the federal government on behalf of the state. Governors and attorney generals of 24 other states filed a brief with SCOTUS explaining that the “can only operate in the manner that Congress intended” if the tax credits are “intact.” No sign of a stick or an awareness of differences in the exchanges, let alone that difference being used to compel them to anything.
In other words, if the feds were planning on using intended tax credit difference as a stick to compel the states to open exchanges or else lose the credits, then they had to be open about it so that the states could make that decision. They placed no such pressure on the states that fell back to the federal exchange option. As they did not, then they couldn't actually use that stick after the fact as a big surprise. Either the administration is now therefore required to give the tax credits (if that was not its intent before), or the King plaintiffs were wrong in claiming that was the intent of the apparent difference between state exchanges and exchanges that the federal government is running on the states' behalf.
Too bad we fought hard in1861-65 for states rights as in the constitution!!!!!
+Sumner Rutledge Yeah, hell of a noble cause there.
+Dave Hill
Long been recognized by SCOTUS the unconstitutionality of enforcing those string? Any cites?
+Mike McDonald The Pennhurst Doctrine (Pennhurst State School & Hospital v. Halderman, 1981). Chief Justice Rehnquist wrote in the majority opinion: "The legitimacy of Congress' power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the 'contract.' There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it … if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously."
This amicus brief in the case goes into more detail: http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/BriefsV5/14-114_amicus_affirm_va.authcheckdam.pdf