“Two-plus weeks have passed since the D.C. Circuit’s panel decision in Halbig v. Burwell and the Fourth Circuit’s opposite decision in King v. Burwell, a substantially identical case.[1] The King plaintiffs have filed their cert petition; and the government has asked for rehearing en banc in the D.C. Circuit; and the initial agitation has subsided. It’s a fine time to highlight a few lessons that, in my estimation, we have already learned. I offer three sets of observations: today, I’ll focus on the interplay between constitutional and administrative law and on the advocacy network that produced Halbig and its companion cases; tomorrow, I’ll analyze the institutional pathologies and ideological derangements that account for the contretemps.
Constitutional and Other Law. To rehearse the wholly obvious, Halbig is the second frontal legal assault on Obamacare. The first (NFIB v. Sebelius) was directed at its “individual mandate,” and its provision that states refusing to participate in the Act’s Medicaid expansion would forfeit all Medicaid funding. These were high-toned constitutional attacks—the former, on the authority of Congress under the commerce and tax powers; the latter, on its spending authority. I don’t mean to dispute the urgency or righteousness of those lawsuits. They had to be brought, and quickly—even if the only point had been to proclaim that they can’t do this to us, at least not without a fight. Beyond that, NFIB served to demonstrate that constitutional arguments over enumerated powers still cut some ice.
The prevailing response to the Court’s narrow upholding of the mandate as a permissible exercise of the taxing power has been disappointment (or worse). At variance with many of my friends and colleagues, I believe that the Supreme Court’s decision actually produced a positive result on the enumerated powers front. Either way, though, even a full-scale win on the mandate question would have done little beyond turning Obamacare into the no-mandate care system that had been advocated by then-candidate Obama—and which the President has since implemented by waiving and postponing the oh-so-essential mandates for individuals and employers.[2] In operational terms, and even for significant constitutional questions, the individual mandate itself has always been a side show.”
“Republicans were quick to pounce Monday on Florida’s announcement that residents buying health insurance on the individual market for next year will face a 13.2 percent average increase in monthly premiums — one of the steepest rate hikes announced for any state. “Obamacare is a bad law that just seems to be getting worse,” said Florida Gov. Rick Scott, a Republican who is running for re-election.
But consumer advocates and Sen. Bill Nelson, D-Fla., the state’s former insurance commissioner, blame the increases on Florida lawmakers’ decision last year to suspend the state’s authority to negotiate and approve premiums on policies sold to people who buy insurance themselves instead of getting it through an employer.
The Republican-controlled Florida legislature voted to cancel that authority until 2016 because it did not want to have any involvement with insurance plans sold through the Affordable Care Act, saying that job should be done by the Obama administration. The federal government has authority to review but not change insurance rates.”
“It’s one thing for President Obama to win an award for “Lie of the Year” for promising Americans “if you like your [health insurance] plan, you can keep it.” It must sting a bit more when a political ally like Barney Frank, the former congressman, flat out says the president “just lied to people.”
In an interview with Huffington Post, the veteran Massachusetts Democrat said he was “appalled” at the “bad” rollout of Obamacare last October.
“I don’t understand how the president could have sat there and not been checking on that on a weekly basis,” Frank said, then added:
But, frankly, he should never have said as much as he did, that if you like your current health care plan, you can keep it. That wasn’t true. And you shouldn’t lie to people. And they just lied to people.””
“Last week, the House of Representatives voted to authorize Speaker John Boehner to file a lawsuit challenging President Obama’s failure to fully implement Obamacare. Specifically, the lawsuit will challenge the administration’s delay of the employer mandate—requiring many employers to provide health insurance or pay a fine—that was supposed to go into effect Jan. 1. It’s clear President Obama repeatedly has abused executive power to circumvent Congress and essentially rewrite the law, but this lawsuit still raises a host of questions.”
“Most voters agree with Republicans in Congress that the president does not have the right to change laws without Congress’ approval, but they doubt a House lawsuit will stop him from acting on his own.
The House voted last week to sue President Obama for exceeding his constitutional authority by making changes in the new national health care law after it had been passed by Congress. A new Rasmussen Reports national telephone survey finds that only 22% of Likely U.S. Voters believe the president should be able to change a law passed by Congress if he thinks the change will make the law work better.
Sixty-three percent (63%) think any changes in a law should be approved first by Congress. Fifteen percent (15%) are not sure. (To see survey question wording, click here.)
Forty-five percent (45%) favor the House’s decision to sue the president to stop some of his executive actions on the grounds that they exceed the powers given him by the Constitution. But just as many (44%) oppose the lawsuit. Eleven percent (11%) are undecided.
However, only 30% think it is at least somewhat likely that the lawsuit, even if it is successful, will stop the president from taking executive actions on initiatives he has proposed that Congress refuses to go along with. Fifty-six percent (56%) consider this unlikely. This includes 11% who say the lawsuit is Very Likely to stop the president from acting alone and 21% who say it is Not At All Likely to work.”
“Six months ago, a House Republican campaign official listed the top three issues that would propel the party’s candidates to victory in the midterm election: “Obamacare, Obamacare, Obamacare.”.
It was a strategy that worked well in 2010, when GOP electoral gains were fueled primarily by a high-profile campaign to repeal the newly passed Affordable Care Act.
But now, months removed from the political storm that resulted from the botched rollout of the law and as more Americans begin receiving healthcare under the program, many Republicans have a more nuanced view of its importance.
House Republicans are broadening their once-singular focus on the healthcare law and headed into an extended summer break without delivering on their promise to advance an alternative.”
“Court decisions can have huge policy implications. Because judges are not policy experts, statistical modelers or economists, and because these are inexact sciences anyway, the policy implications of judicial rulings may not be fully appreciated when they are made.
A good example is the 2012 U.S. Supreme Court ruling that made Medicaid expansion optional for states. It’s hard to imagine that the justices had any idea that their decision would leave 4.8 million low-income people in a coverage gap without insurance in states that chose not to expand, or that 10 million slightly higher-income people would get tax credits to help them buy coverage in those same states. (Not that those things may, or should have, changed the justices’ conclusion.)
Now let’s consider Halbig v. Burwell, a case in which recent appeals court rulings made headlines. Halbig, which raises questions about whether the U.S. government can provide tax credits to people in federal- as well as state-run insurance exchanges, is still churning through the courts.
What if the plaintiffs prevail in Halbig, denying tax credits to moderate-income people in states with federal health insurance exchanges? The map below shows the potential combined effect of the 2012 Supreme Court decision and a plaintiffs’ victory in Halbig. (To be clear, the courts are not considering the earlier Medicaid ruling as part of Halbig, but the combined effect would be real.)”
“If being uninsured were no big deal, presumably Obamacare never would have been enacted. The whole premise of the law is that being uninsured is a bad thing, so it’s well worth wielding a few carrots and sticks to get people into coverage. Unfortunately, Obamacare has had to break more than a few eggs along the way. One of the presumably unintended consequences of this misguided law is the fashion in which it encourages some young adults to become uninsured. These are the very young people that the Exchanges need to sign up for coverage if they are to avoid a death spiral.
It may seem puzzling that a law that both hands out subsidies to encourage coverage and imposes penalties on those who do not could possibly increase the incentive to become or remain uninsured.”
“In an oped for Politico, I explain why ObamaCare architect Jonathan Gruber’s 2012 admissions that “if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits” matter to the ongoing litigation over the Obama administration issuing those subsidies in federal Exchanges, and why Gruber’s attempts to explain his own words away are not credible. Shortly after submitting that piece, I learned Oklahoma Attorney General Scott Pruitt found Gruber’s remarks relevant enough to ask a federal court hearing one of those cases to take notice.
Gruber’s repeated remarks contradict the Obama administration’s legal argument, made in Halbig v. Burwell and three related lawsuits, that it is implausible that Congress would have conditioned those subsidies on states establishing Exchanges. His remarks likewise contradict the amicus briefs Gruber himself filed in two of those cases. (Here’s my response to those briefs.)”
“The health law’s unpopularity among the public rose sharply in July with a surge of disapproval from people who had been agnostic about it in recent months, a poll released Friday shows. The law is as unpopular as it has been since it was enacted four years ago.
The poll from the Kaiser Family Foundation found that 53 percent of the public had an unfavorable view of the law in July, the highest level since the law was passed in 2010. It was up from 45 percent in June. (KHN is an editorially independent program of the foundation.) The law’s unpopularity hit similar levels several times since passing, most recently in January when 50 percent of people disliked it.
Support for the law in July remained about the same as in June, with 37 percent supporting it. The change came from the number of people who had previously told pollsters they did not know or refused to discuss their opinions: while 16 percent fell into that group in June, only 11 percent did in July.
The poll did not provide any definitive answers for the change but noted that people reported that their informal chatter with friends and family was more than four times as likely to be negative as supportive toward the law.
Public opinion was evenly divided on the Supreme Court’s decision that closely held companies such as the Hobby Lobby craft stores could refuse to provide workers with birth control through their insurance because it violated the religious beliefs of the company. Women and men also saw things pretty much the same. Seven of 10 Republicans hailed the decision, and Democrats disliked it just as strongly. The public was split about whether the decision will make it harder for women to get prescription birth control. Few people said the court’s action would make them more likely to vote in the fall mid-term elections.”