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Can Republicans Win By Losing At The Supreme Court?

By Greg Stohr, Bloomberg News (TNS)

With the U.S. Supreme Court poised to issue blockbuster rulings on same-sex marriage and health care, Republicans have a blueprint for victory: They need to lose.

Republicans have played a leading role in asking the court to undercut Obamacare by barring tax subsidies for people who buy insurance in at least 34 states. GOP state officials are urging the court to uphold their gay-marriage bans.

Yet legal success on either front would throw the party — and its presidential candidates — into a political thicket. A victory on health care could strip insurance from more than 6 million people, including policyholders in the states set to cast the first votes for the Republican nomination: Iowa, New Hampshire, and South Carolina.

And ruling against gay marriage would make the issue a focal point for the 2016 general election, leaving Republicans to argue against a right supported by six in 10 Americans.

Both rulings are due by the end of June as the court finishes its nine-month term with its traditional flurry of major opinions.

In both cases, Justice Anthony Kennedy and Chief Justice John Roberts hold the votes that might save Republicans from what could be a political disaster. Kennedy’s track record suggests he will join the four Democratic appointees to back marriage rights, while Roberts cast the vote that saved Obamacare in a case three years ago.

A ruling against Obamacare would throw American health-care into a new period of turmoil. Unless the justices delayed the effective date of the decision — something the court hasn’t done since 1982 — it would almost quadruple the average premium for affected policyholders in a matter of months.

What’s more, the ruling might send the individual insurance markets in the affected states into what economists call a “death spiral”: The higher premiums would mean that only the sickest and most desperate buy insurance. That would cause premiums to rise even more.

That scenario would pressure Republicans on multiple levels. In the states, officials who until now have resisted Obamacare would face calls to set up exchanges so that residents could continue to collect the tax credits. In Washington, Republican lawmakers would suddenly have to shift from trying to dismantle Obamacare to managing the fallout.

“If the Supreme Court rules against it, they’re going to have to have an answer for the millions that now are relying on this insurance,” said Ron Bonjean, a Republican strategist and ex-aide to former Senate Majority Leader Trent Lott of Mississippi. “They’ll have to provide a credible alternative.”

Senate Republicans led by Ron Johnson of Wisconsin (who is up for re-election next year) are already proposing a bill that would extend the tax credits through the 2016 election. The measure, however, would also repeal the law’s individual and employer mandates, which require people to acquire insurance and businesses to offer it. Those provisions would almost certainly mean White House opposition, making the bill as it stands more a political statement than an avenue to fill the hole the high court ruling might open.

“I’m not sure it will be enough to say, ‘We’ve got an approach but the president will veto it,'” said Karlyn Bowman, a public opinion specialist at the American Enterprise Institute in Washington. “Something will have to happen pretty quickly so those people are not without coverage.”

On gay marriage, the party’s longstanding opposition has left it at odds with public opinion. The latest Gallup poll shows record support for legalized same-sex marriage, with 60 percent favoring and 37 percent opposed. Same-sex couples can now wed in 36 states.
A Supreme Court ruling against gay marriage would set up a new round of state-by-state fights. Some of those battles would occur in court, as judges sort out the effects of earlier rulings legalizing marriage.

Other fights would take place at the ballot box. Marriage advocates could try to put the issue before voters in Ohio and Michigan, two presidential swing states where gay marriage is currently illegal.

Supporters might also look to Arizona and Colorado, states that now have gay marriage because of court rulings. A Supreme Court decision potentially would nullify those rulings, forcing supporters to turn to ballot initiatives.

The fracas would leave Republican candidates in a bind, forcing them to try to placate the social conservatives who are key to winning the party’s presidential nomination without alienating middle-of-the-road voters who support gay marriage and who are key to winning the general election.

“Having it continue to go through a domino effect isn’t necessarily helpful for Republican candidates who are trying to appeal a wider section of voters than just social conservatives,” Bonjean said.

A ruling legalizing gay marriage wouldn’t entirely take the issue off the political table. Wisconsin Gov. Scott Walker is calling for a constitutional amendment to allow states to ban the practice. And many opponents would view the Supreme Court decision as an overreach and an infringement of religious rights, says Saul Anuzis, the former chairman of the Michigan Republican Party.

“I don’t think this is the final chapter at all,” Anuzis said. “I think it will focus the fight and again probably re-energize people because now they will have a very specific target.”

Even so, people on both sides of the issue say many Republicans would prefer seeing gay marriage fade as a political issue.

“They’d probably be better off losing the gay marriage issue, politically that is,” said Stuart Rothenberg, editor of the nonpartisan Rothenberg Political Report in Washington. “It would remove the issue from the debate, and the GOP is now on the wrong side, politically, of the debate.”

(c)2015 Bloomberg News. Distributed by Tribune Content Agency, LLC.

Photo: GOP against Obamacare via Flickr

Gay-Rights Skeptic Roberts Urged To Make U.S. High Court History

By Greg Stohr, Bloomberg News (TNS)

WASHINGTON — When three of his U.S. Supreme Court colleagues said two years ago that same-sex marriage wasn’t a constitutional right, Chief Justice John Roberts left himself room to maneuver.

Roberts declined to join that group, and that decision will put him in focus Tuesday when the court hears arguments in a historic clash that may legalize gay marriage nationwide.

With Roberts uncommitted, some advocates are hoping that the nation’s highest judicial officer will place his imprimatur on a pro-marriage ruling. Should the court back same-sex marriage it would cap a transformation in the rights of gays over the past dozen years, bringing weddings to the last 14 states where they are banned.

“His vote is in play,” said Judith Schaeffer, vice president of the Constitutional Accountability Center, which backs marriage rights. “I don’t think people should write him off.”

Same-sex marriage opponents are skeptical, saying Roberts’s record during his decade as chief justice points strongly toward support for state bans. Gay-rights advocates say the chief justice nonetheless may be swayed by what they see as the tide of history toward marriage equality.

The 2013 ruling, which struck down a federal law that denied benefits to married same-sex couples, has stoked expectations that the court was preparing to make gay weddings legal throughout the country. Even Justice Antonin Scalia predicted in dissent that the five-member majority — four Democratic appointees, plus Justice Anthony Kennedy — was poised to take that step.

That sense grew over the last seven months as the court let gay marriage begin in 17 new states. In February, Justice Clarence Thomas said an order that let gay marriage briefly begin in Alabama “may well be seen as a signal of the court’s intended resolution” of the issue.

Roberts would be the sixth vote, unnecessary to secure the victory but valued for its symbolic significance.

His support would “add to the emerging sense that same-sex marriage is not a partisan issue,” said Michael Dorf, a constitutional law professor at Cornell Law School who filed a brief backing marriage rights. “That would help in getting the decision complied with in the parts of the country where public opinion is against same-sex marriage.”

The hints Roberts dropped two years ago weren’t exactly favorable for gay-rights advocates. He blasted Kennedy’s majority opinion and its conclusion that the federal law was aimed at stigmatizing same-sex marriage.

Perhaps more ominously, Roberts said Kennedy’s reasoning actually argued against a constitutional right by pointing to the traditional power of the states to define marriage.

“That power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions,” Roberts wrote in the case, U.S. v. Windsor.

Gene Schaerr, a lawyer involved in the defense of Utah’s gay-marriage ban, said Roberts’s opinion makes him a likely vote to uphold the state prohibitions.

“For him to rule in favor of the right to same-sex marriage would really be inconsistent with his position in Windsor,” Schaerr said.

Gay-marriage backers aren’t convinced. They note that Roberts didn’t sign onto the more pointed dissent from Scalia, who accused the majority of writing “legalistic argle-bargle.” Nor did he join Justice Samuel Alito in saying flatly that “the Constitution does not guarantee the right to enter into a same-sex marriage.”

Roberts “was preserving a clean slate for himself for the ultimate case,” Schaeffer said.

More recently, the chief justice declined to join Scalia and Thomas in publicly dissenting from orders that let same-sex marriage go forward in South Carolina, Florida and Alabama while the high court considers the issue. Roberts and Alito both made no comment.

And Roberts might have been behind the decision in October not to review pro-marriage rulings by three federal appeals courts. The Supreme Court takes up cases only when four justices want to do so, and the court generally doesn’t disclose who voted which way.

The high court didn’t agree to intervene until a different federal appeals court had ruled against marriage rights in cases from Michigan, Kentucky, Ohio and Tennessee. The justices will hear two hours and 30 minutes of argument starting at 10 a.m. Eastern on Tuesday.

Gay-rights advocates say the bans in those states deprive same-sex couples of a fundamental right and unconstitutionally treat them differently than heterosexuals. The states say the definition of marriage should be left to the voters.

“What it’s about is who gets to decide that question,” said former Michigan Solicitor General John Bursch, one of two lawyers who will be arguing for the states. “Is it the people acting through the democratic process, or is it the federal courts?”

One possibility is that Roberts could join the majority and try to write a relatively narrow opinion for the group, perhaps one aimed at protecting the religious rights of people who object to same-sex weddings.

Schaerr discounted that possibility, saying he doubts Roberts would cast “what amounts to a dishonest vote just so he can control what the opinion says.”

Still, chief justices have been known to join major rulings that don’t perfectly align with their previously expressed views. Dorf points to the example of William Rehnquist, who wrote the 2000 decision reaffirming the landmark 1966 Miranda ruling and its requirement that police advise suspects of their rights.

Roberts himself joined the court’s four Democratic appointees in 2012 to uphold the core of President Barack Obama’s health care law.

“It is conceivable that he could provide the sixth vote for institutional reasons having to do with the court’s legitimacy and making the decision appear more legal and less political,” said Douglas Laycock, a University of Virginia law professor who filed a brief backing marriage rights. “I do not think that is very likely, but it wouldn’t be astonishing.”

With same-sex weddings finding increasing acceptance in public opinion, Schaeffer says she hopes broader forces will persuade Roberts to join a majority decision favoring marriage rights.

“Does he want to be a little footnote to history?” she asked. “Or does he want to be on the right side of history and the right side of the Constitution?”

(c)2015 Bloomberg News, Distributed by Tribune Content Agency, LLC.

Photo: Opponents and proponents of gay marriage at a rally in the state capitol, March 2004. (Kentucky Photo File/Flickr)

Wisconsin Voter-ID Law Stands As U.S. High Court Rejects Appeal

By Greg Stohr, Bloomberg News (TNS)

WASHINGTON — The U.S. Supreme Court cleared the way for Wisconsin to implement a voter-identification law that opponents say is one of the strictest in the nation.

Rejecting an appeal by civil rights groups, the justices Monday gave a victory to Republicans, including Wisconsin Governor Scott Walker, who have championed voter-ID laws around the country. Wisconsin is one of 30 states with ID laws and one of 17 that enacted measures since the Supreme Court upheld an Indiana statute in 2008.

Civil rights groups say ID requirements disproportionately affect minority and low-income voters while doing little if anything to protect against fraud. The organizations pressing the Wisconsin appeal said 300,000 registered voters in that state lack a qualifying ID.

“The right to vote is the foundational element of American democracy,” the groups argued. “Increasingly restrictive voter ID laws like Wisconsin’s Act 23 unjustifiably burden the voting rights of millions of registered voters, particularly African Americans and Latinos.”

Wisconsin officials led by Walker, a potential presidential candidate, defended the law. They argued that it will impose a minimal burden on voters while providing more assurance of a fraud-free election.

“In Wisconsin, as elsewhere, the overwhelming majority of voters already have qualifying ID,” Wisconsin Attorney General Brad Schimel argued. “For those who lack ID, obtaining one and bringing it to the polling place is generally no more of a burden than the process of voting itself.”

In October the Supreme Court blocked the Wisconsin law from applying to the Nov. 4 election. A lower court had revived the law weeks earlier, and civil rights groups told the high court at the time that hasty implementation would mean widespread confusion.

Lower courts have largely backed voter-ID laws. In a notable exception, a federal trial judge said Texas’s statute was the product of intentional discrimination. That case is now before a federal appeals court and could make its way to the Supreme Court before the 2016 election.

Unlike with Wisconsin, the Supreme Court let the Texas law take effect for the 2014 election.

In the latest Wisconsin appeal, groups led by the League of United Latin American Citizens argued that the 2011 state law violated the U.S. constitutional guarantee of equal protection and the 1965 Voting Rights Act.

Wisconsin’s law lets voters use any of eight forms of identification, including in-state driver’s licenses, state-issued photo IDs for non-drivers and military IDs. The state also accepts some student identification cards, though not those from the University of Wisconsin campuses.

A federal trial judge invalidated the measure, saying it would deter many residents from voting. The judge also said the state hadn’t pointed to any recent instances of voter impersonation in Wisconsin.

A three-judge federal appeals panel in Chicago reversed that decision, pointing to new rules the state issued to help people obtain the documentation they need to get IDs. Officials took that step after the Wisconsin Supreme Court, in a separate case, said people must be able to get IDs without having to pay a fee for documents.

The panel’s ruling drew a rebuke from Judge Richard Posner, who argued unsuccessfully for reconsideration by a larger group of judges. Posner said voter-impersonation fraud was “a mere fig leaf for efforts to disenfranchise voters.”

The Supreme Court in 2008 upheld Indiana’s voter-ID law on a 6-3 vote. Writing the court’s lead opinion, Justice John Paul Stevens said voter fraud was a real risk that “could affect the outcome of a close election.”

Stevens said the record in the Indiana case “does not provide any concrete evidence of the burden imposed on voters who currently lack photo identification.”

The Wisconsin civil rights groups say the trial in their case produced that type of evidence. State officials say the two laws are indistinguishable after the changes required by the Wisconsin Supreme Court.

Photo: A Mary Burke supporter holds a sign promising to vote during a September, 2014  rally (Milwaukee Teachers’ Education Association/Flickr)

Justice Who Once Tried To Kill Obamacare Now Potential Savior

By Greg Stohr, Bloomberg News (TNS)

WASHINGTON — U.S. Supreme Court Justice Anthony Kennedy voted to strike down Obamacare three years ago. Now, he could be the law’s savior.

Kennedy on Wednesday emerged as a pivotal vote as the court weighed whether to strip more than 7 million Americans of the federal subsidies that helped them buy health insurance.

At several points during the hearing, Kennedy said the challengers’ reading of the 2010 statute could violate states’ rights by coercing them to set up insurance marketplaces.

“There’s a serious constitutional problem if we adopt your argument,” he told the lawyer challenging the tax credits.

Kennedy’s questions suggested he was at least a potential fifth vote to back the administration’s argument that the law, President Barack Obama’s signature legislative achievement, provides the credits to purchasers in all 50 states.

“He’s definitely the justice who’s in play,” said Cory Andrews, a lawyer with the Washington Legal Foundation, which backs the challenge against Obamacare.

The nine-member court’s four Democratic appointees all indicated they agreed with the administration. Chief Justice John Roberts, who cast the decisive vote to uphold the law against a constitutional challenge in 2012, asked only a handful of questions.

The fight turns on a four-word phrase in the Affordable Care Act. The measure says people qualify for tax credits when they obtain insurance on an exchange “established by the state.”

Four Virginians say those words limit the credits to the 16 states that have set up their own online marketplaces, known as exchanges, for people to buy insurance. The other 34 states, mostly Republican-controlled, declined to do so and left the job to the federal government.

The Obama administration is urging the court to look beyond those four words to the rest of the act and its broad purpose of providing coverage to tens of millions of uninsured Americans.

Kennedy suggested several times that the challengers’ reading of the law was the more natural one. “Perhaps you will prevail on the plain words of the statute,” he told Michael Carvin, the lawyer representing the challengers.

The problem for Kennedy stemmed from what that interpretation would mean. The administration says eliminating tax subsidies would render insurance unaffordable for millions of people, leaving only the sickest and most desperate in the market and sending rates surging upward.

“If your argument is accepted, the states are being told either create your own exchange, or we’ll send your insurance market into a death spiral,” Kennedy said to Carvin.

The possible solution: interpreting the law as the administration advocates so that states wouldn’t be pressured into setting up their own exchanges.

Kennedy, 78, mentioned the legal doctrine of “constitutional avoidance.” Under that approach, the court tries to interpret statutes so as not to render them unconstitutional.

“I was encouraged by the questioning,” said Elizabeth Wydra, a lawyer with the Constitutional Accountability Center, which backs the administration in the case. It showed that Kennedy “appreciates the disastrous consequences that result from the challengers’ interpretation of the law.”

Kennedy, a 1988 appointee of Republican President Ronald Reagan who is often the court’s swing vote, also indicated he understood the burden that approach would impose on the states, Wydra said.

“Taking him at his word, he was saying that the court needs to think long and hard about the legal doctrine known as constitutional avoidance,” she said.

Some lawyers said a ruling along the lines suggested by Kennedy would require a major shift in the court’s approach toward states’ rights.

“To say it’s a serious constitutional problem is to suggest that prior laws that the Supreme Court has upheld against constitutional challenge are in fact constitutionally problematic,” said Jonathan Adler, a law professor at Case Western Reserve University in Cleveland who was one of the first to make the case against nationwide subsidies.

Kennedy himself made clear he wasn’t sold on one prong of the administration’s argument, concerning the Internal Revenue Service. The government says the court should defer to the IRS view that the tax credits apply nationwide.

“It seems to me a drastic step for us to say that the Department of Internal Revenue and its director can make this call one way or the other when there are, what, billions of dollars of subsidies involved here?” Kennedy said.

Even so, the thrust of Kennedy’s questions opened up a new path for the administration to win the case and preserve the law.

“He is the big question mark,” Andrews said. “That’s the big takeaway from today.”
___
With assistance from David McLaughlin in Washington.

Photo: Steve Rhodes via Flickr