Can Obamacare be Saved from the Supreme Court?

So, granted that the Supreme Court will probably cut off the subsidies for anyone buying health insurance on a federal exchange, the question is, can anything be done about this.  I am assuming that the Supreme Court decision is a foregone conclusion and nothing will change their minds.  What other alternative are there?

The one that gets mentioned most often is for states that don’t have exchanges to start them.  At the national level, low information voters will no doubt blame Obama for their loss of health insurance.  But at the state level, and among people in the know, there will start to be pressure to build state exchanges.  News on that front is revealing.  The states of Illinois and Delaware are frantically attempting to cobble together something that looks like a state exchange.  This will no doubt lead to further disputes and litigation over what is and is not a state exchange.  The best account I have seen on the subject says that to be considered a state exchange,the state must:

• Enact authorizing legislation or a have a properly issued executive order establishing the exchange;

• If the exchange is operated by an independent agency or non-profit, establish a properly constituted governing board;

• Have in place exchange governing principles;

• Fulfill all exchange functions, either itself or by contract with a private entity or under arrangement with HHS

• Provide funding for the exchange, which must be self-sufficient for 2015.

So far as I can tell, this means the state need not build the actual website, but must have the exchange authorized by the legislature or governor, put regulations in place, and provide funding (which necessarily must be approved by the legislature).  I have no idea whether this is doable by next June, and, if so, how many states are willing to do so.

Sixteen states (including Mississippi!) have submitted briefs to the effect that they relied on the federal exchange on the understanding that their citizens would be able to receive subsidies through it. But the states of Oklahoma, Alabama, Georgia, West Virginia, Nebraska and South Carolina have filed briefs urging the courts not to allow people buying insurance on federal exchanges to receive subsidies.  Apparently these six states are willing, not only to deny their citizens health insurance, but to actually strip it away rather than submit to the horrors of Obamacare.  It seems a safe assumption that these states will do nothing to protect their citizens' subsidies.  Other states that refused Medicaid may follow their example. But in any event, this time the Supreme Court does not have the option of allowing states to opt out of letting their citizens receive subsidies to purchase health insurance. Either all citizens buying insurance on federal exchanges may receive subsidies, or none may.

There is one other possibility.  Congress could insert the words “or the federal government” to the phrase exchange "established by the state."  Yes, I know.  Most people will now fall out of their chairs laughing, saying that after a Republican blowout, what are the changes of Congress actually making Obamacare work?  My answer to that is two-fold.  The first is that voting against a law as an abstract proposition is one thing.  Actually seeking to strip people of their health insurance is quite another.  Another answer is that, while Republicans can hardly be expected to fix a law they hate and bitterly opposed, fixing this one part could be made part of a larger compromise.  Since it involves expenditure, one way to do it would be to pass a Republican-friendly budget giving them a number of things they want (and face it; with Republicans controlling both houses of Congress, they are going to get a budget that goes mostly their way), and in exchange inserting the four magic words that will prevent people from being stripped of their health insurance.  The advantage of doing this as a budget measure is that it can be passed by a simple majority in the Senate, so only five Republicans (assuming a 55-45 majority) will have to defect.  (A larger number will have to defect in the House).  Or, Democrats can agree to repeal the employer mandate and the medical devices tax in exchange for inserting those four magic words.  But that would require 15 Republicans to defect; a much harder thing to do.  And it would require John Boehner and Mitch McConnell to risk their perches by actually bringing such a measure to the floor, where it will probably pass with mostly Democratic votes.

Does that seem impossible?  Well, here is my answer.  It is impossible if we don’t bring about serious political pressure.  Republicans can rejoice in millions of Americans losing their health insurance, confident that Obama will be blamed.  It is up to us to see to it that Republicans get blamed.  I have already seen a few comments that there should be a lot of heartbreak stories hitting the news soon, about people with serious medical problems who were finally able to get coverage through the exchanges thanks to subsidies and now are in danger of losing them.  And we can urge all these people, and their families, and their friends, to call their Congressman demanding that he save their subsidies.  We can organize people whose subsidies are threatened to throng town halls, demanding to know why their Congressman isn’t protecting their coverage.  But won’t Democrats be blamed as well?  At least Democratic representatives have an easy answer – I do support that measure.  It’s the Republicans you need to work on.

So here is my advice.  Get such a movement going right away.  Don’t bring in any extraneous issues.  Don’t talk about same sex marriage or immigration or annoying cultural cues; focus exclusively on Save Our Subsidies (SOS).*  Don’t mention Obamacare.  Don’t mention exchanges or subsidies.  Don’t mention Democrats or Republicans.  Just say that the Supreme Court is threatening to take away people’s health insurance and Congress can stop them any time its wants, so why isn’t Congress acting. Don’t worry about fine-tuned policy details, and don’t be afraid do demagogue the issue.  Let Republicans besieged by people fearing the loss of their insurance do the explaining for a change.  (Because once you have to explain, you have lost).  Democrats can simply assure people that they do support that measure.  Republicans will have to do the explaining.  Blanket the airwaves in Republican districts with ads sayings, “By June, the Supreme Court could hand down a decision stripping _______ citizens of our state of their health insurance.  Congressman X  won’t vote to stop them.”  (The healthcare and insurance industries should be happy to pay for them).  Will this get such a measure passed?  I have no idea.  My hope would be to generate enough pressure to get enough Republicans to defect to pass it as a compromise.  And at the same time, we should step up the pressure on states to establish their own exchanges.

We only have until June!  The time to act is now!  I personally vow to find some sort of group dedicated to pressuring Congress and/or the states to act ahead of this decision and start devoting time and effort to it.  The insurance coverage of millions hangs in the balance!

_____________________________________

*Actually, subsidy is usually seen as a bad word, so something else will have to be used.

Republicans and Healthcare.

Democrats and healthcare are easy to explain.  Democrats want everyone in the US to have access to health insurance.  The easiest way to achieve that is by the federal government.  Every other industrial country has managed to have its national government guarantee all citizens access to health insurance, so why not the US?

But what about Republicans and healthcare?   Why does Obamacare drive them to such hysteria that they are willing to see people in their states suffer rather than the plan succeed?  Some people would say it is pure partisan spite.  I imagine there is an element of that, but it didn’t start with Obama, after all.  Universal healthcare has been a Democratic goal since the days of Truman, and Republicans have thwarted it every time.   They did make an exception in the case of Medicare-D under GWB, but it took a lot of arm-twisting to get it passed, and Republicans have generally repented of Medicare-D as a failing they have vowed never to repeat (although not, of course, to repeal).  What is the big deal here?

When I feel nasty, I want to say that Republicans value a high rate of uninsured as a positive good.  But that is (probably) unfair.  More accurately, the libertarian wing of the Republican Party considers it deeply immoral for government at any level (with the possible exception of county indigent funds) to spend taxpayer money making healthcare available to anyone.  The “constitutionalist” wing has no objection to state or local governments doing so, but considers it unconstitutional for the federal government to spend taxpayer money on healthcare.  And Jonathan Haidt would assure us that the Tea Party sees any government guarantee of health insurance as violating the laws of karma, since anyone who is uninsured must have done something to deserve it.

Regardless of which view one takes, this is an awkward position to be in, since the federal government has, in fact, been spending taxpayer money quite regularly on healthcare since 1965.  And, worse yet, the American people seem to like it and would get terribly upset if the government actually stopped.  So what do you do?  Well, stop the rot where it is now, and hope that maybe some day in the distant future you can reverse it.  This means an almost hysterical overreaction to any attempt to expand government coverage of health insurance at least partly as an act of displaced aggression against the illegitimate abominations like Medicare and Medicaid that already exist.

It is really like the intensity of a lot of conservative churches in their opposition to same sex marriage.  They denounce same sex marriage as an existential threat to traditional marriage of a man and a woman.  There is just one little problem here.  The traditional Christian view of marriage was not just one man, one woman, but also a lifelong indissoluble bond.  Easy divorce is a greater threat to traditional Christian marriage than same sex marriage ever could be.  But conservative churches failed to hold the line against divorce, and now it is too late.  So the fight against same sex marriage is at least partly a displaced aggression against all the other changes that have happened to marriage, a matter of stopping the rot now in hopes of reversing it some time later.

The Supreme Court Guns for Obamacare Again

The Supreme Court’s decision to hear the latest challenge to Obamacare, and in such unseemly haste, is alarming.  The haste is what worries me most, for several reasons. 

Normally, the Supreme Court waits for a circuit split, i.e., for two different circuits to disagree before it takes on a challenge.  This time the claim of a circuit split was extremely dubious.  The Fourth Circuit has ruled in favor of the government.  A three-judge panel of the D.C. Circuit ruled against it, but the decision was on track to be overturned by the D.C. Circuit as a whole.  Instead the Supreme Court jumped in and decided to hear it.  It takes four justices to decide to hear a case.  Clearly the four who lost last time around were stung to the quick and determined to kill Obamacare at the first chance they got.  That they were so quick to jump at the chance strongly suggests they are confident that this time Roberts will rule their way.

Another reason for the haste was articulated by the challengers of the law.  The faster they act, the fewer people will be stripped of their health insurance by an adverse court ruling.  Presumably the Supreme Court wants to strip people of their health insurance as soon as it can so as to limit the number being affected.

But the timing right after an election that was a Republican blowout is most suspicious.  Republicans have always had several goals.  (1) Kill Obamacare.  (2) Make sure Obama gets blamed when millions lose their health insurance.  (3) Make the subject so toxic that Democrats will never touch it again.  (4) Avoid coming under pressure to do something themselves.   This set of priorities rules out an open repeal now that people actually have gotten insurance because openly voting to strip people of their health insurance is a surefire loser.  If Republicans win the triple crown in 2016, they might vote to repeal the individual mandate in hopes of inducing a death spiral.  If the death spiral hits soon enough, they can probably blame Obama for it (just as Obama escaped too much blame for the bad economy in his first term by blaming it on Bush).  But if it takes longer, they will be blamed.  And if the death spiral gets seriously underway while Republicans are in power, they might come under pressure to do something about it. 

Enter the Supreme Court.  If the Supreme Court rules that people cannot receive subsidies if they buy insurance on federal exchanges, it will successfully kill Obamacare in the majority of states that did not set up their own exchanges.  By doing stripping millions of their health insurance during the Obama presidency, the Supreme Court can ensure that Obama and not they are blamed for it.  The whole uproar will probably convince Democrats just how high a priority preventing any expansion in health insurance is to Republicans and prevent them from tackling the issue ever again.  And while Republicans can ride the wave of outrage over so many people losing their health insurance to victory in 2016, they can at least hope that the outrage will have died down enough by the time they come to power, and people will have adjusted well enough to the new situation that they will not come under any pressure to do anything about it, and people will finally accept high rates of uninsured as the will of God and/or the free market.

Why the Republican Blowout?

So, we have had a huge Republican blowout this election, even though the Republican brand is still viewed with suspicion.  Why?  I think we can rule out at least one explanation.  It is not because the Republicans finally got rid of their crazies and ran as a reasonable party.  Quite the contrary, up till now insanity has been a winning formula in the House but has cost the Republicans winnable seats in the Senate and the governorships.  But this time, insanity does not seem to have been a serious barrier to either Senators (Joni Ernst) or governors (Brownback).   Republicans have improved their ground game, and no doubt that has something to do with it.  Democratic turnout was weak, but that is a poor excuse.   It was weak because Democrats lacked enthusiasm, so it is fair to ask why.

I think it safe to say that Democrats’ lack of enthusiasm was part of a general mood of pervasive discontent, and that people voted Republican as a way of expressing that mood.  So why the general mood of pervasive discontent?  The conventional answer is, it's the economy, stupid.  That’s probably a lot of it, but not all.  The economy is certainly lackluster, but hardly disastrous.  It has been a lot worse.   Job growth is decent and unemployment is falling. In fact, for the first time it is genuinely falling in the sense that labor force participation is rising, instead of people simply giving up and leaving the work force.   But it hasn’t fallen enough to raise wages.  Wages remain stagnant and show no promise of picking up any time soon.  That, I think, is the economic answer.  Before, the economy was worse, but people could still hope it was temporary.  Now the economy is so-so and shows no promise of improving any time in the foreseeable future.  This is in some ways worse because there is no hope.

But if it was only the economy, I suspect Republican gains would have been less spectacular.  Obamacare may be a factor.  The rollout was disastrous.  Many existing policies were cancelled, and even though they were replaced, the replacement led to real disruption and anxiety.*  And besides legitimate grievances, many people were eager to blame any other problem on Obamacare as well.  But I doubt that this was a major factor.

I have heard maybe one or two suggestions that it was a backlash against the sudden wave among the courts to compel same sex marriage, but I see nothing to suggest that same sex marriage played any role whatever in the election.

The really decisive factor, I think, is that Scary Things were happening abroad that were easily blamed on Obama’s lack of leadership.  Large numbers of unaccompanied minors started crossing the border.  Russia invaded the Ukraine.  ISIS took over large areas in Syria and Iraq and beheaded journalists.  Several Ebola cases broke out in the US.  Republicans said that if they had been in charge, they would have been tougher and stopped these things from happening.  The claim is not really very credible, but things start looking scary, most people’s natural reaction is to turn to someone strong for protection.

At the same time, I will say that if we had had a sizzling hot economy, most people would probably have shrugged these things off.  A lackluster economy with no prospect for improvement and menacing developments abroad were enough in combination to lead to the Republican blowout.

Is this a harbinger of for 2016?  I would say it is impossible to tell.  That will depend on what happens between now and then.  If the economy picks up enough that wages start rising, if ISIS and Russians in the Ukraine shrink into manageable threats and nothing more disastrous happens, and if Republicans just can’t resist the temptation to act on the crazy, then probably not.  If Republicans act reasonable, if the economy continues to languish, if disasters continue abroad, or if we get into a ground war, then probably so.

Finally, I will drop a few thoughts on what Republicans will do if they do win the triple crown in 2016.  The will undoubtedly cut taxes at the top and gut regulations.  That’s what they do.  They won’t destroy Social Security, Medicare or Medicaid because they aren’t suicidal.  They may very well repeal the individual mandate for Obamacare in hopes of inducing a death spiral.  I wouldn’t bet on any further developments reigning in our national surveillance apparatus.  (I don’t bet on that anyhow).  They may or may not revive the practice of torture or start another war.  They will probably decide that deficits only matter when a Democrat is in the White House.  I have no sense of whether they will decide that tight money is only a universal and timeless moral imperative when a Democrat is in the White House or not.  But what I am confident Republicans will do if they win out in 2016 is sigh with relief that the country has been rescued from the Democratic usurpers, and that it will never again suffer the travesty of a Democrat in the White House.  And the next time a Democrat is, in fact, elected to the White House, I shudder to imagine the freakout.

________________________________________

*I saw this close at hand as people on Medicaid or other state policies saw them cancelled – to be replaced, but the replacement called for work, let to anxiety, and often to a lapse in coverage.

Update on Election Turnout

My own impression for this election was that turnout was pretty good. I went down for the last day of early voting, and the line was snaked well outside the door and backed up far enough that it had to turn to keep from obstructing parking. But apparently my impression was mistaken. General reports around the area were of lower turnout than 2010. Lower than 2010 doesn’t say all that much. Given the level of passion in 2010, I assume election turnout was unusually high that year. So lower turnout this time might just be a return to normal levels. But apparently nationwide, voting levels were unusually low for a midterm, by some accounts the lowest since 1942.

This is actually kind of encouraging. It means that even in an unusually low turnout year, voters snake out into the parking lot for early voting. It means civic engagement is higher than I thought

First Amendment Jurisprudence, Continued

When we last left the First Amendment, the Supreme Court had upheld the conviction of a group of anarchists and radical Socialists for printing inflammatory pamphlets denouncing the US and calling for strikes.  For the first time, Holmes and Brandeis dissented, saying that the First Amendment protected inflammatory speech only if it posed a "clear and present danger" of imminent lawless conduct.

The next major First Amendment case was Gitlow v. New York, another 7-2 decision.  This one upheld the conviction of a group of radical Socialists (for all intents and purposes, Communists) for publishing a Manifesto calling for violent revolution, although it did not incite any actual violence. This time the defendants were prosecuted, not under the federal Espionage and Sedition Acts, but under a New York statute against "criminal anarchy," which banned calling for the violent overthrow of the government or other calls for political violence.  The opinion made quite clear that advocating a socialist program through elections or other peaceful means was lawful; the only question was advocacy of political violence.  The defendants appealed on the grounds that the state statute violated the Fourteenth Amendment guaranty that no one could be "deprived of liberty . . . without due process of law," and argued that "liberty" under the Fourteenth Amendment included freedom of the press.  In other words, the Fourteenth Amendment incorporated the First.  The Supreme Court said that:

For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States.  

Significantly, they did not actually decide but merely "assumed" that the Fourteenth Amendment incorporated the First.  But they did expressly repudiate an earlier opinion denying that the Fourteenth Amendment protected freedom of speech and the press from the states.  This was an important piece of jurisprudence -- the First Amendment had never before been held to apply against the states.  It went on to say, however, that freedom of speech did not protect "utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace," and therefore upheld the conviction, saying that the state had even stronger authority to punish calls for violent revolution.  This point was emphasized several times over.  It further held that so long as the statute is constitutional and the publication violates it, it does not matter whether any actual violence was incited or not.  Holmes and Brandeis once again dissented, again citing the "clear and present danger" doctrine and applying it to the states as well as the federal government.  Holmes also suggested that if the manifesto had been written to induce an immediate uprising, even if it did not incite any violence, his decision might have been otherwise.  The Wikipedia, incidentally, says that Gitlow is also significant as the first major First Amendment case that the ACLU argued before the Supreme Court, and that (a sign of changing times), the Governor of New York pardoned the defendant shortly after the Supreme Court made its decision.

Two years later came the case of Whitney v. California.  This time, the defendant was a Communist prosecuted under California's "criminal syndicalism" statute banning advocacy of violent revolution or membership in an organization advocating violent revolution.  Once again, the Court held that California's "criminal syndicalism" statute did not violate First Amendment guarantees of freedom of speech, the press, and association, although this time they appear to have taken for granted that the First Amendment applied to state as well as federal governments:

The essence of the offense denounced by the Act is the combining with others in an association for the accomplishment of the desired ends through the advocacy and use of criminal and unlawful methods. It partakes of the nature of a criminal conspiracy. [Cite]. That such united and joint action involves even greater danger to the public peace and security than the isolated utterances and acts of individuals is clear.

Brandeis and Holmes wrote a "concurrence" that sounded very much like a dissent:

There is guilt although the society may not contemplate immediate promulgation of the doctrine. Thus the accused is to be punished, not for attempt, incitement or conspiracy, but for a step in preparation, which, if it threatens the public order at all, does so only remotely. The novelty in the prohibition introduced is that the statute aims, not at the practice of criminal syndicalism, nor even directly at the preaching of it, but at association with those who propose to preach it.

Brandeis once again argued the "clear and imminent danger" and,while he said that a state could ban speech that caused a "clear and present danger" of imminent lawlessness, the actual danger had to be established to allow a conviction.  Since "clear and present danger" had not been defined, he attempted to define it; 

In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.

He nonetheless agreed with the conviction because, although forming a political party dedicated to revolution at some remote date in the future was not a crime, he believed there was sufficient evidence of actual criminal conspiracy that conviction might be justified.

A Brief Note on the Election

I voted today.  It was the last day for early voting, and a lot of people were there because they wanted to avoid long lines on Tuesday.  All I can say is that if there is a lot of indifference in this election, it isn't showing at the polling placed.  The line snaked across the voting place, out the door, and long enough that they had to bend it to avoid obstructing traffic in the parking lot.  This may have been in part because it was a long ballot and took a long time to fill out.  But the interest seems to be genuine.

(PS:  One clear difference between Albuquerque and Santa Fe.  Albuquerque, as a larger town, has a lot more judges up for election or retention, which makes the ballot longer).