Posted on 05/21/2015 7:53:16 AM PDT by Second Amendment First
http://www.newyorker.com/news/daily-comment/obamas-game-of-chicken-with-the-supreme-court?intcid=mod-latest
zer0 who has ‘the GOODS’ on the Chief Justice? Sigh....
For those of us who wondered which game of chicken he is playing.
Sometime next month, the Supreme Court will decide King v. Burwell, and the conventional wisdom about the stakes in the case appears to have shifted. The case represents a challenge to the core of the Affordable Care Act. The plaintiffs charge that, based on a strict reading of single sentence (actually, four words), federal health-insurance subsidies should be available only in the sixteen states (and the District of Columbia) that set up their own health exchanges, or marketplaces. This means, they argue, that there should be no subsidies for people who now buy insurance on the federal exchange in the other thirty-four states. At the moment, about thirteen million people receive those subsidies.
The people with the most riding on the outcome, of course, are those thirteen million. Without subsidies, it’s likely that most of them will no longer be able to afford their insurance. Until recently, the perception has also been that the Democrats had the largest political stake in the case. After all, the A.C.A. is the signature achievement of the Democratic President. Suddenly, though, and paradoxically, it has come to seem that Obamacare’s Republican opponents are most at risk if the decision goes their way. They have the most to lose by winning. As Jonathan Chait wrote recently, “The chaos their lawsuit would unleash might blow back in a way few Republicans had considered until recently, and now, on the eve of a possible triumph, they find themselves scrambling to contain the damage.” In this view, the peril is especially great for Republicans, because, as Jonathan Cohn recently pointed out, the G.O.P. has failed to propose any kind of plan to address the loss of insurance for so many millions of people.
So that’s the theory: millions will suddenly be uninsured, and will blame Republicans. As Harry Reid, the Democratic leader in the Senate, put it recently, “I don’t think they will [win the case]. If they do, that’s a problem that the Republicans have.”
No, it’s not. If the Obama Administration loses in the Supreme Court, the political pain will fall almost exclusively on the President and his Party. To paraphrase Colin Powell and the Pottery Barn rule, President Obama will have broken health care, so he owns it. To the vast mass of Americans who follow politics casually or not at all, Obamacare and the American system of health care have become virtually synonymous. This may not be exactly right or fair, but it’s a reasonable perception on the part of most people. The scope of the Affordable Care Act is so vast, and its effects so pervasive, that there is scarcely a corner of health care, especially with regards to insurance, that is unaffected by it. So if millions lose insurance, they will hold it against Obamacare, and against Obama. Blaming the President in these circumstances may be unfair, but it’s the way American politics works.
Republicans, of course, will encourage this sentiment. The precise legal claim in King v. Burwell is an esoteric one. It is not based on a claim that Obamacare is unconstitutional. (The Supreme Court upheld the constitutionality of the law three years ago.) Rather, the central assertion by the plaintiffs is that the Obama Administration violated the law itself. In any event, the subtlety of the issue at the heart of the case will surely be lost in its aftermath. The headlines will read, correctly, “Court rules against Obamacare,” and this will be all that matters. The Republicans will argue that the Supreme Court showed that the law was flawed from the start, that the Obama Administration is lawless, that a full repeal of the law is the only appropriate response to the Court’s decision—and that the millions who lose their subsides should blame the sponsor of the law. Watch for references to a “failed Presidency.” They’ll be plenty of them.
Understandably, perhaps, the Administration has courted this kind of reaction. Better than anyone, Administration officials know the scale of the problems that would be created by a loss in the Supreme Court. Advertising this possibility makes sense as a litigation strategy; Obama officials don’t want to make it easy for the Supreme Court to rule against them. In testimony before Congress and elsewhere, Sylvia Burwell, the Secretary of Health and Human Services (and the defendant in the case), said that the Administration has no contingency plan for an adverse ruling in the Supreme Court. But playing chicken with the Justices only works if it works. If the Supreme Court strikes down the subsidies, the Administration will also have to answer for why it didn’t prepare for this possibility.
For many people, the President of the United States is the government of the United States. It’s why he gets the credit and blame for so many things, like the economy, where his influence can be hard to discern. This is particularly true for a subject in which the President has invested so much of his personal and political capital. If the Supreme Court rules against him, the President can blame the Justices or the Republicans or anyone he likes, and he may even be correct. But the buck will stop with him.
Never under estimate the power of the Stupid Party to screw this up.
The wording of the law is clear. The court should have an easy time with the ruling. For the Court to rule that somehow the letter of the law isn’t what Congress meant, and therefore they are in agreement with the President and Democrats the law really means something else, would completely destroy Congress as an equal branch of government. Any law on the books could be interpreted by the President to mean something and as long as the Supreme Court agreed, it wouldn’t matter what the text actually said.
Hopefully there are five justices on the court who will actually stand up for the rule of law and the concept of co-equal branches of government.
Actually, it is based on the documented legislative history of the bill. Do the critics think we forgot something so far back as 2010?
Ann Coulter once wrote "The beauty of being a liberal is that history always begins this morning."
They want us to believe that this is just about "four words," and not about how those four words got there, or more to the point, how the other words that were there with them got removed in debate, leaving just those four words behind as all that was left.
Democrats were forced to set up the exchanges this way to get the bill passed.
Wikipedia actually has a decent description of the negotiation that led the intended compromise.
Patient Protection and Affordable Care Act - Senate:
The Senate began work on its own proposals while the House was still working on the Affordable Health Care for America Act. Instead, the Senate took up H.R. 3590, a bill regarding housing tax breaks for service members. As the United States Constitution requires all revenue-related bills to originate in the House, the Senate took up this bill since it was first passed by the House as a revenue-related modification to the Internal Revenue Code. The bill was then used as the Senate's vehicle for their healthcare reform proposal, completely revising the content of the bill. The bill as amended would ultimately incorporate elements of proposals that were reported favorably by the Senate Health and Finance committees. With the Republican minority in the Senate vowing to filibuster any bill they did not support, requiring a cloture vote to end debate, 60 votes would be necessary to get passage in the Senate. At the start of the 111th Congress, Democrats had only 58 votes; the Senate seat in Minnesota ultimately won by Al Franken was still undergoing a recount, and Arlen Specter was still a Republican.To reach 60 votes, negotiations were undertaken to satisfy the demands of moderate Democrats, and to try to bring several Republican senators aboard; particular attention was given to Bob Bennett, Mike Enzi, Chuck Grassley, and Olympia Snowe. Negotiations continued even after July 7 — when Franken was sworn into office, and by which time Specter had switched parties — due to disagreements over the substance of the bill, which was still being drafted in committee, and because moderate Democrats hoped to win bipartisan support. Then, on August 25, before the bill could come up for a vote, Ted Kennedy—a longtime healthcare reform advocate—died, depriving Democrats of their 60th vote. Before Kennedy's seat was filled, attention was drawn to Snowe because of her vote in favor of the draft bill in the Finance Committee on October 15, but she explicitly stated that this did not mean she would support the final bill. Paul Kirk was appointed as Senator Kennedy's temporary replacement on September 24.
After the Finance Committee vote, negotiations turned to the demands of moderate Democrats, whose votes would be necessary to break the anticipated Republican filibuster. Majority leader Harry Reid focused on satisfying the Democratic caucus's centrist members until the holdouts came down to Joe Lieberman of Connecticut, an independent who caucused with Democrats, and Ben Nelson, a conservative Democrat, representing Nebraska. Lieberman, despite intense negotiations with Reid in search of a compromise, refused to support a public option, agreeing to vote for the bill only if the provision were not included, although it had majority support in Congress. His demand was met. There was debate among the bill's supporters over the importance of the public option, although the vast majority of supporters concluded it was a minor part of the reform overall, and Congressional Democrats' fight for it won various concessions, including conditional waivers allowing states to set up state-based public options such as Vermont's Green Mountain Care.
It's clear that the removal of federal exchanges (the "public option") was the result of compromises made to get the bill passed. Now, Democrats want the Court to say that they always intended for all states to get federal subsidies.
This case will come down to what the DEMOCRATS intended vs. what they were forced to compromise as a combined legislature after the election of Scott Brown as the Republican "40th vote."
The question is whether Roberts will give back to Democrats what they intentionally gave away now that Brown is no longer in the Senate to complain?
Will Roberts undermine the concept of good-faith negotiation by giving the Democrats what they really wanted all along but were politically unable to attain?
Republicans intended things, too, but were only able to politically attain the few concessions that they received, such as no federal subsidies in stat es with no state exchanges. If Roberts takes that away, we might as well have a new amendment that Legislative intent is only what Democrats say it is at any given time.
-PJ
Well said. Good comments.
I was actually referring to how the Republicans will handle it if SCOTUS strikes the subsidies. I fully expect them to roll over and show Obama their bellies once again if that happens.
Everyone who voted for this under any circumstances should be lobotomized.
The federal exchange and the public option are two completely different animals. The public option referenced in the legislative history was for a government run insurance plan, like Medicare, available to everyone. That failed to pass.
The federal exchange does exist but offers only commercial insurance plans.
That's why they want to subsidize federal exchanges, so they can get back on the path to a full public option.
-PJ
I was not happy post-SCOTUS argument in this case that it sounded like the Justices were more concerned with how it would affect the people hwo were duped to begin with than they were with the actual law and very public duping of the American people. If the Supremes don’t knock this down,we can safely say the “Rule of Law” is in America’s past.
The feds fund it either way. The states that set up exchanges got federal grants to do so, and all insurance subsidies come from the feds regardless of who runs the exchange.
I don’t really see what the strategy would have been for the Dems. Would they have knowingly passed the thing giving the red states the power to cripple it?
I think it's a case of being blind to their blind spot.
I think that it never occurred to them that a state would turn down so much "free" federal money, because they never had before.
I think they were truly caught off-guard by the Red State attack, just as I think that Red State governors are now caught off-guard by how Republicans in Congress caved once they were hand the ball from the states.
-PJ
There’s already a bill to extend subsidies into 2017. I expect the RINOs to back it.
“I was not happy post-SCOTUS argument in this case that it sounded like the Justices were more concerned with how it would affect the people hwo were duped to begin with than they were with the actual law and very public duping of the American people. If the Supremes don’t knock this down,we can safely say the “Rule of Law” is in America’s past.”
That did seem to be the main line of questioning. But it’s hard to gauge the way the court is leaning from their questions, strangely.
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