The National  Memo Logo

Smart. Sharp. Funny. Fearless.

Monday, December 09, 2019 {{ new Date().getDay() }}

Tag: king v. burwell

Polls: Americans Like SCOTUS’ Obamacare Ruling — But Opponents Are Stubborn

Two new polls show that Americans overwhelmingly approve of the Supreme Court’s decisive ruling last week on the Affordable Care Act.

The court ruled 6-3 in King v. Burwell that the federal government can continue to provide subsidies to help pay for insurance policies in states where it (rather than the states) has set up the exchange marketplace. The case could possibly be the last significant legal challenge to President Obama’s signature health care law.

The Kaiser Family Foundation poll released Wednesday found that 62 percent of Americans approve of this decision, against only 32 percent of respondents who disapproved.

In addition, a CNN poll released Tuesday found that Americans favored the ruling by a similar margin, with 63 percent in favor versus only 34 percent against it.

At the same time, the Kaiser poll also found that those who disapprove of the decision largely remain set in their views even if it is explained that the decision will help people. For those 32 percent who disapproved, a follow-up question was asked:

What if you heard that as a result of the decision, more than 6 million people in states using the federal marketplace will keep the financial help they have been getting to pay for health insurance? Would you still say you disapprove of the Court’s decision or would you now say you approve?

The result: Out of those 32 percent, only 4 percentage points switch to approve of the decision, 25 percent still disapprove, and the remainder are undecided.

And remember: Those 25 percent who still disapprove of universal access to health insurance will likely make up a large share of Republican primary voters.

Photo: SEIU International via Flickr

Obama’s Lonely Road

Americans were perilously close to losing their right to health care when the Supreme Court offered a reprieve. Few were more grateful than the conservative politicians who had been railing against the Affordable Care Act while praying they would not have to face the political consequences of its collapse.

For progressives, guaranteed health coverage is a political triumph, the greatest addition to the social safety net in decades. And Obamacare would not have happened without the man it was named after.

All this makes the current left-wing revolt against President Obama so hard to fathom as well as so unfair. Many on the left are now branding Obama as a toady of big business interests uninterested in the struggles of working Americans. Their stated reason? His support of a trade agreement among Pacific Rim countries.

This is the president who led the country out of the most frightening economic crisis since the Great Depression. He saved the American auto industry — and by extension the industrial Midwest — from collapse. And he did it against an impenetrable wall of right-wing opposition. For several terrifying months, a government bailout of Detroit was by no means a certainty.

But that was five minutes ago. What has he done for us lately?

Obama’s political skills are notoriously weak. He has not been a great reacher-outer to egos on either the left or the right. Wish it were otherwise, but backslapping is never going to be part of the Obama package.

Foes of a Trans-Pacific Partnership argue that it would ignore environmental and labor standards. Actually, it would impose rules that did not exist before. They say it would let companies sue governments. Actually, they already can (though it almost never happens).

And they portray this accord as hastening the loss of American blue-collar jobs to low-wage countries, such as China. Actually, the purpose is to help its 12 members compete with China.

Fast-track authority to negotiate this deal was eventually passed, thanks to Republican votes. But the mutiny against Obama by his erstwhile allies has left him a diminished presence on the world stage.

No magic wand will bring back the 1960s, when American factories could employ huge numbers at handsome wages. Global competition and computerized manufacturing are here to stay.

The fairest way to address today’s reality is to have the economic winners help those not winning. That means programs preparing Americans for the good jobs there are. It means enhanced economic security for those experiencing job loss or stagnant wages (Obamacare again).

Does anyone — other than Obama’s sternest Republican critics — recall his success in raising taxes on the well to do? Under Obama, the average federal tax rate on households in the top 1 percent has gone up over 6 percentage points. The rich are paying higher taxes on investment income and for Medicare. And the top income tax rate is now 39.6 percent, up from 35 percent.

Yet some on the left now engage in the kind of Obama conspiracy-against-us talk that has characterized the right.

“The government doesn’t want you to read this massive new trade agreement,” liberal crusader Sen. Elizabeth Warren writes in her blog. “It’s top secret.”

Oh? Every word will be revealed for congressional approval or rejection.

Compare that with the recent statement by a blond yakker out of the Fox News factory that Obamacare had been “negotiated in secret.” The Affordable Care Act had fewer secrets than Kim Kardashian.

Obama now looks gaunter and grayer than the youthful senator elected in 2008. That tends to happen to presidents after years of political battle. For Obama, though, the road to the finish line has been especially lonely.

Follow Froma Harrop on Twitter @FromaHarrop. She can be reached at fharrop@gmail.com. To find out more about Froma Harrop and read features by other Creators writers and cartoonists, visit the Creators Web page at www.creators.com. 

Photo: oregonmildep via Flickr

Supreme Court Spared America A Cataclysm

The U.S. Supreme Court’s ruling on the Affordable Care Act has left the law’s most ardent detractors with not much more than a hospital gown for cover.

King v. Burwell may be the last legal assault on “Obamacare,” the right wing’s bête noire. If the Republicans still hope to quash the president’s health care reform, they’re going to have to elect a Congress and a chief executive to “repeal and replace” it.

In the upcoming elections, Republicans will have to make a convincing claim that they have a better plan to supplant Obamacare. (Spoiler alert: They don’t have any plan at all, and they probably won’t by November 2016.) Sure, they will continue to throw darts at Obamacare, but they will be hard pressed to demonstrate that they are more interested in uplifting the quality of health care for all Americans than in playing political games.

It’s clear that Republicans consider the high court’s 6-3 decision a bitter defeat. In the hours after it was announced, Republican frustration was palpable.

GOP presidential candidate and former U.S. senator Rick Santorum, in a statement echoed by his colleagues vying for the nomination, called the ruling “yet another reminder that if we are to rid our nation of Obamacare once and for all, we need to elect a conservative president prepared to lead on day one.”

Mississippi governor Phil Bryant, a Republican, sputtered about a “socialist takeover of health care forced down the throats of the American people.”

Three years ago, Chief Justice John Roberts’ Court upheld the constitutionality of Obamacare’s individual mandate feature. Now, the Court has given its blessing to the intent of the Affordable Care Act.

The case turned on some erroneously drafted language that appeared to limit federal subsidies to people in those states that had set up insurance exchanges. That clause, read in the context, contradicts the intent of the law.

Writing for the majority, Roberts wrote: “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 acknowledged the law’s “three-legged stool”: regulations on insurers (such as requiring them to cover pre-existing conditions without jacking up premiums); a mandate that all individuals must buy coverage; and a subsidy to those who can’t afford coverage. With all the legs in place, the reform has a chance to succeed; take one leg away and insurance markets will go into a “death spiral.”

Universalizing and strengthening insurance coverage remains a vital priority. The National Center for Health Statistics reports that 36 million Americans — 11.5 percent of the population — remain uninsured. Others still face costly generic prescriptions, high deductibles, and scant access to reliable basic care. Unforeseen medical costs are still the major reason that families declare bankruptcy, sometimes even when they are insured.

The Supreme Court’s ruling clears a major hurdle toward achieving maximum coverage. Had the Court ruled for the plaintiff, it would have gutted the Affordable Care Act and sent the nation back to square one. At least now the nearly 17 million Americans who gained coverage will be able to keep it.

The question is where Obama’s antagonists go from here. More than one observer has noted that Roberts saved the Republicans from themselves. An adverse ruling would have caused a major disruption in health care markets. Yanking chemotherapy and dialysis treatments from the recently insured would have left the Republicans in a bad odor at election time. The Court’s decision permits the GOP to keep fulminating throughout the upcoming election season about the savage injustice of Obamacare without proposing a concrete alternative.

That conservatives were willing to cause a health care cataclysm speaks volumes about their true intentions. Don’t expect Republicans to propose health care reform that puts people’s interests before corporate profits. And thank John Roberts’ Court that we don’t have to watch them go through the charade of doing so.

(Mary Sanchez is an opinion-page columnist for The Kansas City Star. Readers may write to her at: Kansas City Star, 1729 Grand Blvd., Kansas City, MO. 64108-1413, or via email at msanchez@kcstar.com.) 

File photo: The president and White House Staff react to the House of Representatives passing the Affordable Care Act on March 21, 2010. (Pete Souza via Wikicommons)

The Acceleration Of History

WASHINGTON — Sometimes history speeds up. Rarely in our nation’s 239 years of life has a single week brought such a surge of social change and such a sweeping set of challenges to past assumptions.

The move against the Confederate battle flag in South Carolina quickly cascaded into a national effort to cast aside commemorations of secession, slavery, and white supremacy. This was more than symbolism. It represented something bigger — the nation’s turn toward “thoughtful introspection and self-examination,” as President Obama said in his powerful eulogy for the Rev. Clementa Pinckney on Friday.

For years, the fact that slavery was the central cause of the Civil War was swept under a rug woven of heritage and battlefield glory. Confederate emblems that came into wide public use in the 1950s and 1960s in large part to protest racial equality and civil rights were treated as if they had always been there, representing a “tradition” kept vague enough to hide away slave labor, disenfranchisement and murderous night riders.

On Thursday, the Supreme Court decided, 6-to-3, to keep the Affordable Care Act whole. To go the other way, as Chief Justice John Roberts argued, would have violated any plausible understanding of what Congress had intended. Roberts’ reasoning was rooted, ironically, in the principles of interpretation put forward by Justice Antonin Scalia. This did not stop Scalia from offering a scalding dissent that gave the nation a vocabulary lesson when he condemned “interpretive jiggery-pokery.”

Yet if the King v. Burwell case was about a textual dispute, its implications were much broader. In principle, there are no irreversible changes in a democratic republic because everything is always subject to popular review. In practice, some reforms do become irreversible as they are accepted by overwhelming majorities as necessary and normal. Obamacare has not quite reached this point, but it is now on the road to joining Medicare and Social Security as fixtures of social policy.

And the next day the Court made same-sex marriage the law of the land. Few legal cases have more dramatically demonstrated the complicated interaction of personal decisions, social movements, political struggles, and judicial judgments than Obergefell v. Hodges. And on few issues has the American public so rapidly changed its collective mind. In Brown v. Board of Education, the Court led public opinion. In Obergefell, the Court followed it.

It’s plain how this happened: As individual gays and lesbians came out, more and more Americans realized that someone they cared about belonged to a group that had long been oppressed and stigmatized. Supporters of gay marriage mobilized these new allies, gradually winning victories in legislatures and referendums. These campaigns further turned opinion to the point where Justice Anthony Kennedy could discern a 14th Amendment right to equal protection that did not seem to apply just a few years ago.

“The nature of injustice is that we may not always see it in our own times,” Kennedy wrote for the majority. “When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

Most Americans will agree with this. Despite my own qualms about judicial activism, I found myself cheering his logic and the result. A fair share of conservatives I know are privately happy that the Court has begun to take the issue out of politics.

This does not make concerns about judicial activism disappear, and liberals should be candid: They cheered Roberts’ judicial modesty in the Obamacare case (“we must respect the role of the legislature, and take care not to undo what it has done”) and then criticized him for upholding a related principle in Obergefell (the majority, Roberts charged, “seizes for itself a question the Constitution leaves to the people”). Liberals — myself among them — have also taken Roberts to task on his own brand of judicial activism in tearing apart laws on campaign finance and voting rights.

Yet these inconsistencies also illustrate something conservatives need to recognize: that social movements, public opinion, the courts, and the elected branches are not hermetically sealed off from each other.

And the core liberal conviction about the Supreme Court, developed during and after the New Deal years, still rings true: that the Court plays its most constructive role in our national life when it uses its power to vindicate the rights of beleaguered minorities. This week will be remembered as a stunning moment when our institutions converged to accelerate our long, steady movement toward an ever more inclusive equality.

E.J. Dionne’s email address is ejdionne@washpost.com. Twitter: @EJDionne. 

Photo: Photo Phiend via Flickr

Late Night Roundup: ‘Jiggery-Pokery’

Larry Wilmore couldn’t help but send up Justice Antonin Scalia’s bitter dissent in Thursday’s major victory for Obamacare, which the senior conservative jurist referred to as “jiggery-pokery.” Larry’s response to that term: “Actually, it sounds like some Victorian-era term for sex in a toolshed, doesn’t it?”

Jon Stewart looked at the reactions to Pope Francis’ encyclical for environmentalism from Republican presidential candidates — that is, from the same people who are always mixing religion and politics in other issue areas: “Well perhaps people would be more for preventing global warming if we referred to it as, ‘taking a stand for preserving traditional sea levels.”

Conan O’Brien highlighted how the Six Flags amusement parks actually have a subtle connection to the Confederate flag — but since most people don’t even know this, the company really shouldn’t even try to become “Five Flags” and bring up the subject in the first place.

Seth Meyers featured a “supporter” of Donald Trump, who went out campaigning among the people.

Right-Wing Trolls — From Scalia On Down — Take On The Obamacare Decision

Right wingers are going into apoplexy over the Supreme Court’s decisive 6-3 ruling upholding federal health insurance subsidies under Obamacare — and a lot of it is pretty entertaining.

The decision in the King v. Burwell case is likely to be the last fundamental legal challenge to the Affordable Care Act. (More litigation could certainly be on the way — but it would realistically only affect things at the edges.) And after five years of chasing this law like Captain Ahab chased a very large whale, these people really aren’t happy about it.

Of course, if we’re looking for an unhinged right winger who’s full of soundbites on just about any topic, there’s just no topping a member of the Supreme Court itself — Justice Antonin Scalia — who in his dissenting opinion called the ruling “of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”

“Contrivance, thy name is an opinion on the Affordable Care Act!” Scalia also declared in a parenthetical aside.

In another memorable line, he referred to the Court practicing “interpretive jiggery-pokery.”

Scalia even capped off a section full of legalese, with an insult in the vein of Don Rickles.

The Court claims that the Act must equate federal and state establishment of Exchanges when it defines a qualified individual as someone who (among other things) lives in the “State that established the Exchange […]. Otherwise, the Court says, there would be no qualified individuals on federal Exchanges, contradicting (for example) the provision requiring every Exchange to take the “‘interests of qualified individuals’” into account when selecting health plans. […]. Pure applesauce.

And in an apparent bid to the start a Twitter hashtag, Scalia stated that the Court “rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare” — a line that shall surely live on for years in right-wing talk radio and blogs.

Another government official, Mississippi governor Phil Bryant (R), got in on the act at the state level. And in an interesting choice of words at a time when much of the country is looking back on the struggles for civil rights in the Deep South (not to mention the Civil War), Bryant’s fiery statement invokes a lot of familiar old language of state resistance to the federal government.

Today’s decision does not change the fact that Obamacare is a socialist takeover of health care forced down the throats of the American people without proper review, and it does not slow the massive and unprecedented transfer of wealth that is at the heart of the subsidy system. Make no mistake—Obamacare is not about helping those in need or improving health care delivery. It is about destabilizing our health care system, ceding more control to centralized government and replacing individual liberty with government dependence.

Mississippi was right, as were numerous other states, not to willingly entrench Obamacare by establishing a state-based exchange, and I will continue to resist any efforts that attempt to shove Obamacare deeper into this state.

Bloggers chimed in, too. Michelle Malkin invoked the accusation that the Supreme Court was rewriting the law to mean anything that President Obama would want — citing a gay showtunes composer.

Bryan Fischer is a radio host for a recognized anti-gay hate group, the American Family Association, which is worth noting only because the group recently had to repudiate some of his claims because they were too vile even for them. This moral authority declared the SCOTUS ruling to be all but the death knell for America itself.

Sean Hannity blew his top on his own radio show, reviving one of the classic fearmongering routines against Obamacare, now that it has yet again gotten a clean bill of Constitutional health.

“And I’m telling you, death panels will exist! Because you know what that death panel is gonna be? It’s gonna be called a morphine drip. You get your morphine drip; it depresses your respiration — and guess what, you die! Is that the care you want?”

And Ben Shapiro of Breitbart tweeted out a rather — um, creative reference to the Fifty Shades of Grey franchise.

Photo: Protesters in Minnesota call for smaller government and the repeal of the health care law enacted in March, 2010. (Fibonacci Blue via Flickr)

Antonin Scalia Defeated — By Antonin Scalia

Justice Antonin Scalia did not simply lose today’s key ruling on the federal health insurance subsidies for the Affordable Care Act — he had his own previous arguments turned against him.

The majority opinion issued today, written principally by Chief Justice John Roberts — whose crucial vote previously upheld Obamacare back in 2012 — illustrated the idea of the insurance subsidies being an integral part of health care reform itself.

And the absurdity of just striking out subsidies for people living in states with federally run exchanges — as Scalia and his fellow dissenters insisted had to be done under the law — was illustrated by citing… Antonin Scalia, from his earlier efforts to stamp out health care reform.

It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius, 567 […] (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) […] (“Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”).

That is, Roberts and company cited the dissent in the first major Obamacare case, from 2012, when the dissenters — Scalia being one of them — tried to say that pretty much each every single facet of the Affordable Care Act was not only wrong but unconstitutional, and that they interlocked so completely that by striking down even one of them, the entire Act would have to fall.

As a political staffer friend, who is a trained lawyer (though not currently practicing), tells me: “The problem with results-oriented jurisprudence is it makes hypocrisy easy to spot.”

The full paragraph in that original dissent is as follows:

In the absence of federal subsidies to purchasers, insurance companies will have little incentive to sell insurance on the exchanges. Under the ACA’s scheme, few, if any, individuals would want to buy individual insurance policies outside of an exchange, because federal subsidies would be unavailable outside of an exchange. Difficulty in attracting individuals outside of the exchange would in turn motivate insurers to enter exchanges, despite the exchanges’ onerous regulations. […] That system of incentives collapses if the federal subsidies are invalidated. Without the federal subsidies, individuals would lose the main incentive to purchase insurance inside the exchanges, and some insurers may be unwilling to offer insurance inside of exchanges. With fewer buyers and even fewer sellers, the exchanges would not operate as Congress intended and may not operate at all.