Category Archives: Supreme Court

Will the Supreme Court Scuttle Obamacare Subsidies? (No. What Can’t Happen, Won’t. )

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Not long ago, I ran across a photo of the Supreme Court captioned: “Maybe this will turn out to be . . .  Obamacare’s death panel?”  

The caption refers to the widespread belief that when the Supreme Court rules on the latest challenge to Obamacare (“King vs. Burwell”),  it will strike down most of the government subsidies that have made insurance affordable for so many middle-income and low-income families.  (This lawsuit has been financed by the “Competitive Enterprise Institute,” a libertarian group with long ties to tobacco disinformation campaigns, and more recently, climate change denial. The Koch brothers are among the funders of the institute.)

The Supremes are expected to announce their decision in June. If Obamacare’s opponents prevail, the healthcare.gov system will have no choice but to cut off subsidies for as many as 7.5 million Americans in 34 states, including Texas and Florida, probably within a few weeks after the ruling is announced. The Kaiser Family Foundation has put together an eye-opening map revealing where subsidies are safe, and where they are at risk. 

The plaintiffs’ argument turns on just five words buried in the 900-page Affordable Care Act (ACA). In a paragraph describing the tax credits that will be available to people buying policies in online marketplaces, known as “exchanges” the law describes them as “exchanges established by the state.”

Seizing on that last phrase, the libertarians who masterminded this legal challenge gleefully point out that only 16 states opted to set up their own insurance exchanges. The remainder of the marketplaces were established by the federal government.

Ergo, the plaintiffs’ lawyers conclude, 34 states cannot legally offer subsidies to their citizens!

As a point of fact, if a person reads the entire ACA, he or she will discover that the law also is very clear that, if a state refuses to open an exchange, the federal government will “establish and operate such Exchange within the State.”

                  An Absurd Argument

When the IRS drafted its rules for implementing the ACA it realized that, of course, Congress intended to make subsidies available both in the state and in the federal exchanges.

By fixating on only five words, the plaintiffs’ lawyers ask the Court to ignore the broader goal of the “Patient Protection and Affordable Care Act”: universal healthcare.

As Jeffrey Toobin put it in the New Yorker earlier this month: “the King case is notable mostly for the cynicism at its heart. Instead of grandeur” –which is more typical of cases brought to the highest court in the land– “there is a smallness about this lawsuit.” 

I agree. The plaintiffs are concocting an argument based on semantics, not ideas. It is not that the ideologues bringing this case don’t understand the core mission of the ACA. They do.  They know that the goal is to provide affordable health care to all Americans.

But Obamaca’re opponents are quite coolly and cynically ignoring that mission while plucking a phrase out of the legislation, hoping that, if they sharpen it, by repeating it and  harping on it, they can use it to carve the heart out of Obamacare.

Think about it: if subsidies disappeared in 34 states, millions would no longer be able to afford their insurance. At that point, young healthy Americans would drop their policies, leaving the insurance pool filled with sicker, older patients who felt they had no choice but to buy coverage–even without the government’s help.

In order to pay for their care, insurers would hike premiums, and as rates levitated, more and more healthy customers would cancel their coverage. This in turn would trigger what experts call a “death spiral” as premiums rose to unaffordable heights, and insurers simply stopped offering coverage in many states.

To believe that legislators meant to offer subsidies only to people who happened to live in states that create their own exchanges is to believe that the law was consciously designed to self-destruct.

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Medicare, Medicaid, Global Warming and Gun Control– Can Liberals and Conservatives Find Middle Ground? Should They? Part 1

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 In a nation divided, “compromise” has become an extraordinarily appealing idea. Weary of the acrimony and endless wrangling, more and more Americans are asking: Why can’t conservative and liberal politicians come together and forge bipartisan solutions to the problems this nation faces?

Keep in mind that it is not only our elected representatives who are having trouble finding common ground. The Pew Research Center’s latest survey of “American Values” reveals that as voters head to the polls this November, their basic beliefs are more polarized than at any point in the past 25 years. In particular, when it comes to the question of government regulation and involvement in our lives, the average Republican has gravitated to the right. In 1987, 62% of Republicans agreed that “the government should take care of people who can’t take care of themselves.” Now just 40% support this proposition. Democrats haven’t changed their views on this issue: most continue to believe “there, but for fortune . . .”

In Congress, where polarization has led to paralysis, some argue that Republican leaders are responsible for creating gridlock by insisting on “party discipline.” But liberals in Washington also are accused of “dividing the nation.” Even President Obama, who set out to unite the country, has been described as “the most polarizing president ever.” During his third year in office, Gallup reports, “an average of 80 percent of Democrats approved of the job he was doing, as compared to 12 percent of Republicans who felt the same way. That’s a 68-point partisan gap, the highest for any president’s third year”–though this may say more about the temper of the times than the man himself. Nevertheless, many commentators believe that progressives, like conservatives, need to cede ground. The debate has become too contentious, too “political,” they say. I disagree. There are times when we cannot “split the difference.” Too much is at stake. We must weigh what would be won against what would be lost.

But reporters who have been taught that they must be “fair” and “balanced” often write as if all points of view are equally true. After all, they don’t want to be accused of “bias.” Thus they fall into the trap of what veteran Supreme Court reporter Linda Greenhouse calls “he said, she said” journalism. To them, the “middle ground” seems a safe place– a fair place– to position a story.

This may help explain why so many bloggers and newspaper reporters are calling for “bi-partisan consensus” as they comment on some of the most important issues of the day.

Global Warming

Writing about global warming, Huffington Post senior writer Tom Zeller Jr. recently declared: “Compromise is the necessary first step to tackling the problem. What ordinary Americans really want is for honest brokers on all sides to detoxify and depoliticize the global warming conversation, and then get on with the business of addressing it. That business will necessarily recognize that we all bring different values and interests to the table; that we perceive risks and rewards, costs and benefits differently; and it will identify solutions through thoughtful discussion and that crazy thing called compromise.” [ my emphasis] (Hat tip to David Roberts (Twitter’s “Dr. Grist”) for calling my attention to this post.)

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Self-fulfilling Media Narratives: How One Man Wound Up Deciding the Fate of Healthcare Reform

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Personally, I am delighted that Chief Justice Roberts voted to uphold the Affordable Care Act (ACA)   But, I am troubled that the fate of U.S. healthcare turned on one man’s opinion. This is not how things are supposed to work in a democracy.

Healthcare represents 16% of our economy. It touches all of our lives. If we don’t like the laws our elected representatives pass, we can vote them out of office.  The Supreme Court, on the other hand, doesn’t have to worry whether its decisions reflect the will of the people. The Justices are appointed for life.  This is why they are not charged with setting public policy.

                        The Media Shapes Our Expectations 

As I suggested when oral arguments began back in March,  a “media narrative” drove the case to the Court– a fiction that caught on, in the press, on television, and in the blogosphere, where it began to take on a reality of its own. A handful of “state attorneys general and governors” saw “a political opportunity” and floated the idea that the law might be unconstitutional.  The media picked up the story, repeated the heated rhetoric, and “fanned the flames … Before long, what constitutional experts thought was a non-story became a Supreme Court case.”

These media narratives are based on what “that those in power and in the media have concluded is likely to happen,” says Lyle Denniston, known by some as the “Dean” of Supreme Court reporters.  Writing on “Scotusblog.com,” he observes: “One ‘narrative’ about the health care law began building up in Washington, and perhaps beyond, right after the Supreme Court held its hearings in late March.  The mandate, it was said, was going to be struck down, the government’s lawyer had blown it, and the President was going to be deeply wounded politically over the loss of his treasured domestic initiative.”  Some media outlets were so persuaded by their own myth-making that initially, they reported that the Court had ruled against reform!

Denniston explains that once the story goes viral, the conventional wisdom is then repeated, over and over, until “often, it seems, such ‘narratives’ become self-fulfilling.”

He then points to a “currently prevailing ‘narrative’ that most of the country is stubbornly committed to the Tea Party’s wish to limit the power of the federal government.”   The facts contradict the  fiction: Tea Party Candidates have been “losing  steam” in recent elections   In April, a WashingtonPost/ABC poll revealed that support for the Tea Party among young adults had plunged to 31%– down from 52% in the fall 2011. Half of those polled said that the more they heard about the Tea Party, the less they liked it.

I wrote this post for null.com, where it appeared earliler today, To Read the Rest of the Post, go to https://www.null.com/blog/2012/07/12/self-fulfilling-media-narratives/

 

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